Are you thinking about selling your business?
 Selling a business can be a potentially stressful process, and it’s essential to hire the right professionals to help you. After all, you have invested years of effort into growing your business, and you want to make sure that the entire process is problem-free and comfortable.
 It’s rare to find a straightforward buyer who will offer you a fair, upfront price. As most experienced entrepreneurs will tell you, you’ll probably need to shortlist genuine offers from a pool of prospective buyers. Selling a business involves advanced planning to minimise delays, confusion and losses. 
Important Things to Consider Before Selling a Selling a Business
Several factors require serious consideration before you decide to sell your business:

  Who Is Going to Buy?

You need to first think about the profile of a potential buyer. Who will be interested in buying the business? Potential buyers could include competitors, new entrants in the market, current or former employees or an established company looking to diversity their products or services.

  What Are the Terms of Purchase?

Most buyers want to buy a successful business and may agree to a combination of a cash buy-out and a promissory note for future payment to be paid over some time. You need to ensure that the promissory note is backed by a guarantee or hard security before agreeing to the sale.

  Review All Your Current Arrangements

Have you reviewed employee contracts, intellectual property agreements, current customer contracts, business ownership documents and financial reports? All your existing records and arrangements must be up-to-date and legal.

  Are You Selling the Entire Business?

Do you plan to sell the entire business or are a part of it? Do you have other business interests that are connected to the business you want to sell?
Typical issues that affect the sale or purchase of a business include location, size, and the nature of operations, intellectual property and employment agreements. Selling a business involves a detailed assessment of several complex factors. The final sale agreement should be fair, legal and compliant with current regulations.
Why It Helps to Hire Professionals
Experienced lawyers can support you every step of the way to ensure that the entire transaction is legitimate and valid.
The experienced legal team at Owen Hodge Lawyers can help perform due diligence regarding prospective buyers, draft your business sale agreement and ensure legal compliance. We coordinate with other professionals like accountants to get a clear idea of the assets, liabilities, structure and layout in order to assist you in the best way possible.
That’s not all.
Business lawyers can also help you negotiate fair terms of sale based on the current facts and figures. They may also need to file documents with certain agencies, obtain licenses or coordinate with government officials during the sale. We prioritise our clients’ interests and work hard to protect you from potential liability and litigation.
Our team of trained business lawyers has worked on business sale and purchase agreements across a variety of industries including franchising, retail, manufacturing, real estate, medical, automotive and many more.
Please contact our office on 1800 770 780 for more information on how we can help you buy or sell a business. 
The post I’m thinking about Selling My Business – What Professionals Can Help Me with This? appeared first on Owen Hodge Lawyers.

Written by Leigh Adams 
Stamp duty is not dead. Not yet. In fact even though there is talk about abolishing it, it is unlikely that any abolition will extend to landholder duty.
It can be very difficult to recognise when landholder duty will apply.
Ask John, he will tell you. His clients, Audrey and Robert, wanted to acquire some commercial property in the south of Sydney worth $1.8m. It included a caravan park and other businesses.
John had advised Audrey and Robert to buy the land through their non-geared family unit trust (Unit Trust). He also said to them that their self-managed super fund could buy some of the units under regulation 13.22C of the Superannuation Industry (Supervision) Regulations 1994 (Cth) which allows superfunds to acquire that which would otherwise be an in-house asset.
As the vendors needed time to buy another property, John was able to negotiate a lengthy settlement of 6 months for Audrey and Robert. They were very happy with that.
Consistent with good tax advice, John had arranged for the first tranche of units in the unit trust to be issued to Audrey and Robert equally between them on the basis that all issued units were fully capitalised. Immediately before the exchange of contracts, the trust was established with each of Audrey and Robert acquiring 10 units at a price of $9,000 each. This money – totaling $180,000 – was used as the deposit for the purchase of the land.
Audrey and Robert knew they were getting good advice and thought to themselves that they had picked their professional advisor very well.
John explained to Audrey and Robert that when the time came for payment of stamp duty, and indeed the balance of the purchase price, they could simply just acquire a second tranche of fully funded units. Three cheers for John!
But alas – such a scenario gives the taxman four bites at the cherry.
First Bite
Regardless of the date of settlement, stamp duty is payable within three months of the date of exchange of contracts for the purchase of the land. When John contacted Audrey and Robert about issuing further units to fund the duty and the balance of the purchase price, over four months had passed. The Unit Trust was liable for fines and interest on the duty that was going to be paid out of time.
Second bite
When John was arranging to pay the duty for the purchase, he explained to the OSR officer that the funds to pay for the balance of the purchase price were coming from the issue of additional units in the trust.
The OSR officer asked him whether landholder duty would apply. John broke out into a cold sweat and immediately delved in to Chapter 4 of the Duties Act to find out what the OSR officer was talking about.
From John’s reading, he concluded that landholder duty would not apply because the value of the land was under $2m. Then he read on:  plant and equipment “affixed” to the land was to be included in the valuation for the purpose of the landholder duty provisions.
John arranged for a valuation to take place. The caravans were bolted to the land for safety reasons. So they were fixtures too, John assumed.
The whole of the plant and equipment, including the caravans, came to $200,000. And surprisingly, the caravans on their own, came to 50% of that sum.
Then John remembered that under the common law, something affixed to real property is not a fixture if the parties did not intend it to be permanently affixed. Clearly the caravans were not intended to be permanently affixed because John was told that the vendors had been intending to redevelop the land in the years to come to make a theme park. Audrey and Robert wanted to do the same thing.
Accordingly John instructed the valuer of the plant and equipment to do another valuation and this time, not to include the value of the caravans.
The land itself was valued at $1,800,000. When only adding the value of the non-caravan plant and equipment to the land, the value of the land came to $1,900,000. That was under the threshold!
Or was it?
John got a surprise when he supplied the relevant material (including the second valuation) to the Office of State Revenue.
In his haste, John had not read the section of the Duties Act which provided that the meaning of “affixed” in the Duties Act means what it says. The meaning is not impacted by whether or not it was intended to remove the fixtures at some time in the future.
Accordingly the assessment of the value of the land for landholder duty was to be calculated on the value being $2,000,000 and not $1,900,000. Landholder duty would apply. How would he explain this to Audrey and Robert?
Third bite
The acquisition of the second tranche of units equally between Audrey and Robert resulted in Audrey and Robert making a ‘relevant acquisition’ in a landholder under s.149(1) of the Duties Act. This triggered a liability to pay duty at ad valorem rates under s.148.
Section 149 captures this transaction even though Audrey and Robert, as owners of the second tranche of units, own them in the same proportion as they held the initial tranche of units.
So the Unit Trust will pay stamp duty on the value of the land acquisition and in addition, Audrey and Robert will pay stamp duty at the same rate on their acquisition of the second tranche of units to fund the purchase. They are paying stamp duty twice.
The good news in relation to the third duty problem is that under s.163H of the Duties Act, the Commissioner has discretion to waive duty in circumstances where Parliament did not intend Chapter 4 of the Duties Act to apply – see White J’s judgment in Milstern Nominees Pty Ltd v Chief Commissioner of State Revenue [2015] NSWSC 68 in which his Honour held at [31] that the Commissioner’s discretion under s.163H should be exercised where ‘there was no intent to avoid duty’ and where the relevant acquisition of [units] ‘would have no practical consequence as to the way in which the land held… would be appointed or enjoyed.’ The decision was also to the effect that if the ‘beneficial or economic ownership’ was unchanged, then the Commissioner should grant the waiver.
Accordingly, John will have to tell Audrey and Robert that an application will need to be made under s.163H seeking an exemption from duty which would otherwise apply to the acquisition of the second tranche of units by Audrey and Robert.
The good news for Audrey and Robert is that they have good prospects be being successful, even if their opinion of their advisor John goes down a few notches. Applications cost time and money. Submissions are required. Costs are involved. Why didn’t John tell them beforehand?
Provided the additional units acquired in the second tranche are acquired by the same unitholders in equal numbers and for equal consideration, John should be saved from a potential action in professional negligence.
Fourth Bite
The fourth problem with this arrangement is that where it is proposed that a related self-managed super fund acquire some or all of the units either just before the settlement or just after the settlement, Chapter 4 is triggered again and the Commissioner is entirely unlikely to extend a waiver in those circumstances.
Whilst regulation 13.22C of the Superannuation Industry (Supervision) Regulations 1994 (Cth) allows superfunds to acquire units in a unit trust and thereby acquire an indirect interest in land, the landholder provisions must be taken into account from the get-go of the advice rather than as an afterthought once the arrangement has begun to be implemented.
Even if the self-managed super fund was a fund with just Audrey and Robert as members and trustees and even if Audrey and Robert held exactly the same membership balances, there are clearly arguments that could be raised to the effect that the ‘beneficial or economic ownership’ of the units would not be the same after the self-managed super fund acquired the second tranche.
For example, but without limitation, the implications of ‘conditions of release’ from the fund could bear heavily on the issue.
There are only a handful of cases on this intriguing scenario.
Conclusion
The prospects of successfully applying for an exemption under s.163H are substantially better if the additional units are acquired by (and only by) existing unitholders in the same proportions and to the same value as they held them beforehand.
Any capital gains anticipated by a unit trust acquiring land may be scuttled by one or more rounds of unanticipated landholder duty when the interest in the land is being acquired.
Landholder duty remains a stalwart feature of our state’s current tax system and it is likely to become independent of any reform to stamp duty. It must not be underestimated when advising on asset protection, business structures or succession planning.
For further advice on these issues, please contact Leigh Adams or Georgia Adams at Owen Hodge Lawyers on 1800 770 780 or via email at [email protected].
The post Double duty wipes out your capital gains for years appeared first on Owen Hodge Lawyers.

While this might be an odd question to be asking yourself in the midst of an apparent economic downturn, it isn’t as crazy as it might sound. In times of uncertainty, it is possible to make a sound future business decision. It just takes time, research, planning and a willingness to move forward.
First, it is imperative that you take the time to define the type of business venture you are looking to start and/or purchase. If you have already found a business, you will need to confirm to yourself that while the immediate profitability might appear less than you expected, the long term growth opportunities remain viable.
Next you should consider the various avenues open to you for your initial investment capital. If the traditional means of securing capital, such as banks or investments firms, are less available, then consider options that are different, yet equally possible. These types of investors can include;

Family members
Smaller venture capitalist firms
Larger investment firms that might not find a small business an attractive investment when times are booming
Self-Funding

If you are considering buying a business that is already up and running, but possibly suffering a bit due to the economic downturn, or current safety restrictions, then you might find you need less capital for your venture. In times such as these businesses with a previously stellar reputation can be a good buy, as they will recover sooner and more quickly than a new business can get started. When considering buying an existing business consider these factors;

How long has the company been in business?
Does the business have a reputation for solid profits during ordinary economic times?
Is it a business that is either necessary or supplies people with an affordable luxury that will remain needed and wanted during a recession?
Is the owner particularly motivated to sell due to wanting to retire, being burned out or having little interest in riding out an economic downturn?

If your interest lies with starting your own business, then this is an excellent time to look around and identify the gaps in people’s needs. However, the caution is to make sure that the gaps you identify and intend to fill with your new venture are ones that will still be needed once the economy upturns again, or restrictions are lifted. 
Lastly, don’t forget about the talent you will need to hire in order to make your business a success. During a downturn some very experienced people, who might not ordinarily be interested in a new business venture, could be available. It is also possible that the talent pool will be more flexible in their salary and benefit demands as jobs may be more scarce.  As a result, you may find that your work force options will offer a higher quality of employee with more experience to share.
This is not a time to shy away from making good business decisions. Instead, it is a time to look to the opportunities that might not otherwise be available to an entrepreneur and take advantage of an unexpected chance to thrive!
If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
The post With coronavirus sweeping the country, is now the right time to buy a business? appeared first on Owen Hodge Lawyers.

Written by Christine Vrahas, Estate Dispute and Litigation Lawyer 
In NSW, Chapter 3 of the Succession Act 2006 (NSW) provides that certain eligible persons may apply to the Court for a provision order in respect of your estate in circumstances where the deceased has either not made provision or has made inadequate provision for that eligible persons proper maintenance, education or advancement in life.
 Eligible persons to a deceased’s estate are set out as follows:         

spouse or de facto partner  at the time of the deceased’s death;
children (includes adopted children);
former spouse(s);
a person who was, at any time, wholly or partly dependent on the deceased person and who is a grandchild or was, at any particular time, a member of the household in which the deceased was a member; and
a person who was living in a close with personal relationship with the deceased at the time of death.

The law requires the Court to consider a number of factors in hearing these claims. Such factors include, but are not limited to:

The relationship and the extent of any obligations or responsibilities owed by the deceased to that eligible person;
The nature and extent of the estate;
The financial resources and financial needs of the eligible person including any person cohabiting with that eligible person;
The physical, intellectual or mental disability of that eligible person;
Any previous provision made by the deceased person to that eligible person in the deceased person’s lifetime;  and
The character and conduct of that eligible person.

An eligible person has 12 months from the date of death of the deceased to bring a claim. However, in certain circumstances, the Court, if satisfied, can make Orders extending the time for a claim being made. 
 Where a claim for provision is successful, the Court can make, for example, the following  orders for provision to an eligible person out of the deceased’s estate:

a lump sum payment;
a periodic payment;
a specific asset; and
a life interest in a property or income from an investment.

If you are concerned about a potential contest of your will, contact Associate Christine Vrahas at Owen Hodge Lawyers on 02 9549 0774 who retains years of experience acting for both plaintiffs and defendants family provision claims including that of grandchildren claims.
The post Can my grandchild make a claim on my Will? appeared first on Owen Hodge Lawyers.

Written by Estate Planning Solicitor Ellen (Eleni) Pacelli 
“From forth the fatal loins of these two foes, A pair of star-cross’d lovers take their life; Whose misadventured piteous overthrows, Doth with their death bury their parents’ strife….”
Well, we know what happened with Romeo and Juliet at the end, but what happened to their estates?
Granted, Shakespeare, the greatest writer of all time of course does not go into the couple’s assets, but what would happen if they did have valuable assets? What if the couple in secret worked hard, saved their money and bought a little cottage of their own up north to get away from their families? 
If Romeo and Juliet lived and died today, the issues that would include:

Who would manage their estate?
Who would have control over their remains?
Who would have control over their assets?
What would happen to their Superannuation if they had not nominated anyone?
What would happen to their cottage up north?

In short, the answers are likely to be:

The couple died intestate, i.e. without a will, thus their parents would have control of their children’s estate respectfully.
The respective parents would be able to apply to be administrators for their children’s estate.
The respective parents would have control over their children’s remains and decide where they are to be buried.
Their Superannuation would be left to the trustee to decide who it was to go to, an application in which the administrator will need to attend to;
The cottage is likely to be transferred to Juliet’s parents.

Why would Juliet’s parents take the biggest asset owned by the young couple?
Well, in most cases for young couples, they are most likely to be listed as joint tenants when buying their first home. The issue here is that joint tenancy relies on survivorship. Whoever is the last person alive will receive the whole of the property (i.e. cottage)
In Romeo and Juliet’s scenario, it would be difficult for the authorities to confirm who died last, so upon relying on NSW legislation which outlines the rules of survivorship, Juliet’s parents will get the cottage.If it could be confirmed that Romeo died last, then his parents would get the cottage.  
Aside from not being buried together after death, it would be horrible for Romeo of Juliet’s family to miss out on their children’s hard work.
Or perhaps the couple did not want their humble cottage to go to their parents, but to the Children’s Tumour Foundation?
Without a will, and other necessary documents, we will never know! Contact Dr Malcolm Stoddart and Ellen (Eleni) Pacelli from the Owen Hodge Lawyers CBD Estates Planning Team to get your affairs in order!
The post Romeo, Romeo, wherefore art thou Estate Plan? appeared first on Owen Hodge Lawyers.

Owning and leasing commercial property can be an exciting and profitable business. However, it is very important that during the course of determining which businesses you will choose to occupy an available space, you ask the right questions to ensure that your new tenant is a good fit for your property.
Oftentimes, the biggest mistake commercial renters make is assuming that the business they are leasing to is profitable. And, while this can be a reasonable assumption, it isn’t always an accurate one. Therefore, the first few questions you should ask any potential commercial tenant is;
(1) How long have you been in business? If the business is an established one, then it is reasonable to ask to see the businesses financial history to confirm their viability. If the business is a start up, you might want to reconsider or ask some more in-depth questions such as;
(2) As a startup business, do you have a base of capital that you will be working from that will guarantee your lease?
In an instance of a start-up business you may want to ask for a co-signer for the lease, or you may want to limit the lease to a shorter period of time; with caveats to continue the lease or enter into a new lease agreement after you have proof that the business can make the rental payments each month.
Once you determine the financial stability of the potential tenant, then it is important to being reviewing the finer points and details. You may want to consider the following:

Possession of the Property; When will your tenant need to take possession of the property? How long does your tenant plan on leasing the space for? Will your tenant want an option for first renewal before the property is placed on the open market? Will the lease contain an automatic renewal subject to notice by the tenant only in the event they will not be staying on?
Lease Timelines; Will the lease take into account the time needed by the tenant to set up the business within the space allotted? If so, will this time be allotted at the same rental rate per square foot? How many months will the overall lease encompass?
Retrofitting; Will your tenant require changes to the property to meet specific codes and regulations, for example; entrances and exits that allow for access for disabled clients, appropriate number of male, female, family style or gender neutral bathroom facilities. Who will be responsible for the cost of making these necessary changes? 
Style/Design Changes; Will the tenant want to resection the space? Will there be a need for painting or minor construction to fit the space for their business? Who will be responsible for the quality of work, cost of supplies and contractors services?
Hours of Operation; Depending upon the area your commercial property is located you will need to be sure that the tenant’s hours of operation are within the codes and regulations for your zoning laws.
Type of Business; While this might seem an unnecessary question, it is important to verify that the type of business that will be going into your building is legal and that it fits within the types of businesses the area is legally zoned for.
Shared Areas; If your commercial space has a shared area, such as a lobby or cafeteria, be sure to carefully explain the rights and responsibilities for these areas to your tenant. Give the prospective tenant a written document that outlines their particular rights and responsibilities with regard to the use and maintenance of these common spaces. Be sure to inquire into the tenant’s full understanding and willingness to abide by the policies that are in place.

While this list is not exhaustive, it is a good point of reference when you are considering taking in a new commercial tenant. In order to fully protect yourself and your property, it is highly advised that you speak with professionals that deal regularly in the leasing of commercial properties such as; real estate agents, other landlords and a solicitor that specializes in the leasing of commercial properties.
If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
The post Important questions to ask potential commercial tenants appeared first on Owen Hodge Lawyers.

 Advance health directives play a crucial role in confirming your future requirements, beliefs and values. The COVID-19 outbreak has had a global effect on assistive care. Advanced healthcare directives can help refine and upgrade the quality of end-of-life care and preferences in terms of substitute decision-makers.
 What Is An Advanced Healthcare Directive?
 An advanced healthcare directive, also known as a living will, is a legal document that can be prepared by any Australian resident over the age of 18. The directive is a legalised version of your advanced care plan and allows you to outline your preferred requirements for future care.
 Advanced healthcare directives protect you from the uncertainties of the future and empower you to live your life according to your wishes. In a crisis, for example, an advanced healthcare directive will help people make the right choices for you even if you are unable to communicate. However, while advanced healthcare directives are used to make personal decisions, they cannot be used to make financial decisions.
 Making an advanced healthcare directive is a personal choice, and it’s entirely up to your discretion if you want to make one or not. If you wish to change your advanced healthcare directive at any time, you can do so by simply creating a new directive form.
 What Are Some of the Reasons to Have an Advanced Health Directive?
 There are several benefits to having legal advanced health directives:

 You can decide on your preferred treatments in case of health problems in the future. The directive will act as an advisory even if you are unable to speak for yourself.
Your family or loved ones will find it easier to make decisions on your behalf, knowing that they are complying with your wishes. Healthcare professionals are also obliged under law to follow the guidance provided in an advanced healthcare directive.
You can enjoy better peace of mind as you can create, amend or cancel the directives at any time.

Steps to Create an Advanced Healthcare Directive 
Advanced healthcare directive forms are available online or with your lawyer.  Please ensure that you fill out the correct form for your state and area.
You need to get the directive signed by an independent witness above the age of 19. Please note that the form cannot be signed by the person named as the substitute or their spouse/partner. It cannot be signed by your spouse or partner either.
The healthcare directive comes into effect when you lose the capacity to make decisions either temporarily or permanently. If you have made a Power of Attorney document and if there’s a conflict of interest, the medical professionals must respect the most recent document.
As a trusted legal firm in Sydney, our experienced team at Owen Hodge Lawyers provides reliable guidance to clients looking to create advanced healthcare directives. Selecting the right form and making the right choices can make a significant difference to your end-of-life care and wellbeing.
The post Why Everyone Should Have an Advanced Healthcare Directive appeared first on Owen Hodge Lawyers.

 By Christine Vrahas
Estate Litigation Laweyer, Owen Hodge Lawyers 
By making a Will, you take control of the worry for your future and that of your family. It gives you comfort and ease of mind that your family’s future will be taken care of in accordance with your wishes.
A Will doesn’t just include instructions on how a person’s assets are to be distributed upon their death, it also covers some important lifestyle requests such as nominating guardians for children as well as funeral and burial wishes. A will can also set out timings of inheritances by use of trust structures as well as any potential donations the individual would like to make to charity.  
Many people think that there is no need to see a solicitor to draft their wills, however this is a common misconception that can have devastating consequences. If you make your Will yourself, you might miss some important elements and as well as not making a will with a solicitor can cause significant problems and costly litigation for your loved ones you leave behind, including but not limited to the following:

Family provision claims;
Testamentary capacity claims;
Undue Influence; and
Knowledge and approval claims.

Such claims can be avoided with our expert legal advice to make sure your wishes are correctly documented no matter the complexity of your individual situation. It is important to ensure that a solicitor looks over your documents and ensures that it is executed correctly to conform to any and all legal requirements. 
Don’t delay your Estate Planning with a solicitor any longer.
We encourage you to contact Associate Christine Vrahas at Owen Hodge Lawyers for an appointment with a member of our Estates Team at a time suited to you on 1800 770 780.
The post How do I write a Will? appeared first on Owen Hodge Lawyers.

It can be very exciting to sell a home and/or commercial property and pay off a mortgage. However, in doing so, it is important to be sure to take all of the proper steps to get yourself discharged from any further liability for the outstanding mortgage payments.
There are three common instances that require you to take the proper steps to discharge yourself from a mortgage.

If you sell your home
If you refinance your home
If you pay your home loan in full

The steps you must take in each are similar. However, the final outcome can vary slightly with each process. First let’s look at the steps you must take in all three of these situations.

You must contact your lender and inform them that you will be changing your ownership status on your property
Tell your lender that you will be either selling your home to a new owner, refinancing your home with a different lender, or paying off your home in its entirety.
In the instance of refinancing your home, or selling your home, you will need to inform your lender that there will be a new lender involved. You will need to supply them with the contact information for the new lender so that they can contact the new lender to set up receipt of the payoff funds.

The next set of steps involves completing the necessary paperwork to have your mortgage discharged. The lender who holds your mortgage will have specific forms for you to complete. To complete these forms, you will need to be able to supply the following information.

The full names of the borrowers
 The full names of anyone who might be guaranteeing the loan
The account number for the loan and any associated home equity loans taken against the home
Property information
Any other companies/lenders who will be involved in the transactional changes being made to the status of the mortgage
The contract for the sale of the property
The names and contact information for the party buying the property
Any outstanding property tax information
Any liens that might be held against the property

Next, it is important to keep in mind that it can take anywhere from 7-14 days to fully discharge a mortgage. Therefore, be sure to leave plenty of time for this part of the process to be fully completed.
In order for the mortgage to be fully discharged the title must evidence who the new owner of the property is. If you are paying off your home loan in full, you will receive a new title indicating you are now the full owner of the property. If the home is being refinanced, the new lender will hold the title in their name until the home is either sold or paid for in full. If you are selling the home the title will be transferred to the new owner i.e. the new lender. Or, in this instance, the title ownership could reflect that the buyer is the new owner if the buyer paid for the home in full, sans a lender.
Finally, the new title will need to be properly registered. The registration will require Discharge of Mortgage and Certificate of Title to be registered at the Land Titles office. This can be done by the lender upon receiving the funds to pay off the mortgage, or it can be done by the party who paid off the mortgage. Be sure to clarify who will be responsible for registering the new title as this is a very necessary part of fully discharging a mortgage.
If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
The post The Process of Discharging a Mortgage appeared first on Owen Hodge Lawyers.

If you want to operate a business in Australia, one of the most important things is to decide on the right business structure based on your requirement. Choosing an overly complicated structure may be ill-suited to your business objectives and you may incur increased costs in the process. 
At the same time, while a simple business structure is easier to handle and less expensive, it may restrict future growth and expansion. In this article, we analyse the pros and cons of operating as a sole trader from a legal perspective. 
Who Is a Sole Trader?
A sole trader owns and controls 100% of his or her business, is entitled to the entire profits and liable to pay full taxes on the revenues. As a sole trader, you are also responsible for repayment of debts. From a legal standpoint, a sole trader is indistinguishable from the business entity. 
Sole traders are not governed by specific legislation. They are regulated by general laws. 
Advantages of Setting Up Your Business as a Sole Trader 
This is the simplest, easiest and cheapest way to set up your business with minimal legal formalities. Sole traders are also in a more empowered position to make decisions and incorporate changes. 
You also have the option of offsetting losses by assessing other income streams. For instance, if you suffer a loss in income from personal property, you can offset the loss against business revenue. 
Tax-Free Considerations for Sole Traders 
Tax-free thresholds for sole traders is pegged at $18,200 for 2019-2020. A sole trader business is taxed as part of your income. Company structures, on the other hand, do not enjoy any tax-free threshold; you must pay tax on every dollar earned. 
There are no annual or registration fees for sole traders and business licensing fees are significantly lower compared to more complex business structures. 
Disadvantages of Operating as a Sole Trader 
Since you are solely responsible for liability, you may be asked to secure loans by putting up personal assets as collateral. Similarly, you may not be able to raise capital by offering shares. So, if you require additional financing, you may need to approach banks or other lending institutions for external funding.  
You also need to adhere to Australian law when it comes to dismissing employees. 
How to Set Up Your Business As a Sole Trader 
You need not register the name of the business if you are going to operate it under your name. However, if you plan to operate under a different name, you need to register your business.

Register for an ABN or Australian Business Number 
If you plan to operate under a different trade name, register your business with the ASIC (Australian Securities and Investments Commission).
We also advise you to register your business for GST (Goods and Sales Tax) if you expect business income to exceed $75,000 per year. 

As an experienced commercial legal firm, Owen Hodge Lawyers offers expert legal advice to clients who wish to set up businesses in Australia. Our in-house experts will update you with the latest regulatory, tax and business insurance requirements. 
The post What Are the Legal and Regulatory Pros and Cons of carrying On a Business as a Sole Trader? appeared first on Owen Hodge Lawyers.

Keeping your business thriving and profitable during the COVID-19 pandemic is no easy task. For business owners who were hoping to sell companies on favourable terms, the COVID 19 pandemic has hit the world at a most inopportune time. The coronavirus outbreak has affected several aspects of our lives, including the sale of businesses as buyers and sellers gauge the overall effects.
Selling a business is a stressful task that involves much more than just technical negotiation. As always, the terms of the sale will depend on several factors such as the timing, reason for selling, current status of operations and business structure.
 Many businesses have become unsustainable in the aftermath of COVID 19 as it’s challenging to continue paying staff salaries and managing overheads.The good news is, despite the current circumstances, it’s possible to sell your business for a healthy profit. A strong customer base, reliable network of industry contacts, consistent profits and a positive brand image help attract potential buyers.
 Check If You’re Eligible for Government Assistance
The Australian government has offered several relief packages for small businesses to help them sustain losses during the COVID 19 period. These packages are temporary, scalable and targeted packages that can be customized to your unique requirements.
 How to Negotiate a Sale of Business
 Keep all stakeholders updated on what you plan to do with the business. Ensure that you call in overdue payments from debtors. You may need to consider negotiating to see what they’re able to repay under these circumstances. Keep your customers informed about delays in processing or delivery of products and services. For more clarity regarding your responsibilities towards customers, refer to the prescribed government regulations.
 The most reliable way to get a good price for your business is to get your business evaluated by a professional. This not only helps price your business reasonably but also lends credibility to your negotiation. Business sales brokers can help find prospective buyers so you can focus on other tasks.
 Most importantly, put yourself in the buyer’s shoes and see if the deal appears attractive. Quantify as much information as possible, including supplier interruption, cost of alternative suppliers, delayed or lost sales and margins, the impact of layoffs and business interruption insurance claims. This will help buyers value your business properly.
 Prepare All Your Documents
Keep financial statements, tax returns and other information including equipment or inventory ready before sale. Consider including other relevant paperwork such as your current lease and an updated copy of the operating manual. Provide prospective buyers with ‘business goodwill’ in the sale, which should include customer, supplier, vendor contacts and information on trading services etc.
 It takes experience and consistent practice to be a skilled negotiator. Most people sell their business only once in a lifetime and it’s essential to stay on top of the many things that can go wrong during a deal.
As seasoned negotiators, Owen Hodge Lawyers provides legal, financial and tax guidance to those looking to sell their business. Our trained legal team can help you at every stage of the sale process from start to finish.
The post How Do I Negotiate a Sale of Business during Covid-19? appeared first on Owen Hodge Lawyers.

Written by Christine Vrahas – Estate Litigation Solicitor at Owen Hodge Lawyers
Notes on RAKOVICH V MARSZALEK [2020] NSWSC 589
What happens if you never married and never had any children and then died without a Will? That is what happened in the case of RAKOVICH V MARSZALEK [2020] NSWSC 589.
The deceased in this matter died without a Will. The deceased never married and never had any children. As the deceased died without a Will, the operation of the intestacy rules applied, which is what happens when someone dies without a Will. The laws of intestacy meant that the deceased’s nephews and nieces would inherit the deceased’s estate in equal shares.
However, at the time of his death, the individual in question was living with the plaintiff, who was his close friend for over 30 years. Unfortunately, it was accepted that based on the rules of intestacy, that the close friend of the deceased would not receive a share of the estate.
Accordingly, the close friend commenced proceedings for provision out of the deceased’s estate on the basis that he was a person who was, at any particular time, wholly or partly dependent on the individual who passed away, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member. 
The Judge accepted that the plaintiff was an eligible person and that he had been left without adequate provision under the rules of intestacy. An order was made whereby the plaintiff received, out of the estate of the deceased, a lump sum, calculated as 45% of the net value of the deceased’s estate for the plaintiff’s proper maintenance and advancement in life.
If the deceased in this case had prepared a Will, these costly court proceedings could have been avoided. 
The post Are you legally classified as my friend? appeared first on Owen Hodge Lawyers.

The COVID-19 pandemic has caused world leaders to struggle with the best way to protect their citizen’s health and their right to make a living. In an effort to keep economies stable many government leaders, both locally and nationally, have dubbed certain work and some employees essential, thereby allowing them to continue in the ordinary course of their employment. Other industries have been deemed non-essential and have been ordered to close their physical doors. Many of these closed businesses have worked with their employees to transfer their duties to home settings using telephone and video communication for meetings and regular contact with their employees, clients and/or customers.
However, not all businesses or industries have complied. Instead, some have refused to close and have continued to require employees to be present for work duties. This has increased the risks of these employees being exposed to and/or contracting and becoming symptomatic for COVID-19. And, while one could argue that these employees could choose to remain at home, many cannot financially afford to take the risk of being fired by the employers for not showing up for work. Instead, it is highly likely that these employees are continuing to place themselves in harm’s way, due to the illegal actions of their employers.
An employer is responsible for providing employees with a safe working environment. This includes;

Election of a health and safety representative
The formation of a health and safety committee who can review and weigh in on safety decisions within the workplace environment
The cessation of any workplace condition or exposure that is unsafe for employees
Clear policies and procedures that are available to employees for reporting and resolving workplace dangers
A policy of no retaliation against those employees who speak up to report safety concerns

These rights continue to exist for all employees, especially now during the COVID-19 situation. Therefore, if you are an employee who has been mandated by your non-essential employer to continue coming into work, you may have a claim against them in the instance you contract the disease while in their employ.
If you feel the need to exercise these rights, it is important that you do so in accordance with the law. You may do the following;

Refuse to carry out unsafe work procedures
Cease working altogether
Give notice to your employer immediately of your concerns
Document your concerns in writing, providing your employer with a copy of the same
Make yourself available for alternative work projects or an alternative worksite, such as your home

It is imperative that your basis for taking these actions is founded in reasonableness and a genuine need to protect yourself from an imminent threat in the workplace. While these issues have not yet been tested by the law, it is highly likely that they will be in the near future. Therefore, if you feel you are in a dangerous situation we strongly suggest you contemporaneously and accurately document your concerns, present them to your employer and make a decision that will protect your health and well-being.
And, while the extent of damages an employee could sue for after having contracted COVID-19 due to a non-essential workplace remaining open remains to be seen, it is likely the issues will be akin to a personal injury claim. Employers who refused to close, causing employees to become sick and experience long term effects, will be held to the same standard of care as any other personal injury claim including;

Duty of Care
Breach of that duty of care
Negligence
Injury

As such, persons who can prove negligence on the part of their employer and long term permanent effects from the alleged negligence, will present a case that could be viable.
Please continue to return to our site for frequently updated information pertaining to COVID-19 and your rights.
If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
The post Non-Essential Businesses Refusing to Close During The Pandemic; What Are Your Rights? appeared first on Owen Hodge Lawyers.

Requesting early access to your superannuation account balance before retirement is considered illegal. However, due to the severe financial impact of the COVID pandemic, Australians can now legally a portion of their superannuation account balance early.
 The government has imposed stringent criteria that will determine eligibility for early withdrawal of funds. We strongly suggest that you should only consider accessing your superannuation account balance as a last resort. Withdrawing some of your funds not only affects your retirement funds but may also have a significant impact on income protection or life/permanent disability insurance.
 You should also exercise extreme caution while dealing with unscrupulous people who claim that they can help you withdraw your retirement funds. Promoters of such illegal early release schemes will be subject to legal prosecution as well as civil or criminal penalties.
 If you’re in financial distress, the following essential considerations can help you make informed decisions regarding early withdrawal of your super.
 Who Is Eligible for Early Withdrawal of Superannuation Balance?
 The latest government guidelines stipulate that those who are eligible for accessing their super can withdraw up to $10,000 until July 21, 2020, and an additional $10,000 after July 21 until September 24, 2020.
 The following factors determine if you’re eligible for early access to your super:

You are currently unemployed
You are eligible for youth allowance for job seekers, parenting payment or standard job seeker payment
On or after January 1, 2020:

Loss in terms of reduced working hours
You have suffered job loss or redundancy
Your business revenues (as a sole trader) have been reduced by 20% or more

 You may also be eligible to access some of your funds on compassionate grounds. These may include needing to pay for:

 Medical treatment, transport or palliative treatment for you or a dependent
Paying for your home loan or making payments to the council
Death, burial or funeral expenses for a dependent

You may also be eligible for withdrawal in case of severe financial hardship.
 Key Considerations Before Accessing Your Superannuation Balance
 There are three key considerations you should take into account if you are thinking of accessing your super early.

You must be able to provide documentary or other evidence of severe hardship.
If you’re already close to retirement age, it may be much more challenging to build the funds back. Women may be at an added disadvantage as they usually retire with less retirement pay (due to unequal pay issues).
Your superannuation may not have enough liquidity levels on hand for immediate encashment. Retirement funds are designed for long-term benefits and they need time to recover from extreme market fluctuations in the recent past.

 Our expert advisors at Owen Hodge Lawyers strongly recommend that the decision to withdraw your superannuation should not be taken lightly. It’s a good idea to seek financial and legal advice regarding immediate and long-term implications. We are always happy to answer questions, clarify doubts and provide maximum assistance to our respected clients.
The post What Should I Consider before Withdrawing My Super? appeared first on Owen Hodge Lawyers.

NCAT stands for New South Wales Civil and Administrative Tribunal. They provide a specialist range of legal services for a broad range of legal issues including guardianship matters, issues relating to tenancy and building works, discrimination and equal opportunities, consumers and traders and more. 
This article explains how NCAT may affect your application for guardianship of someone who suffers from impaired decision making ability. 
NCAT and Guardianship Orders 
The Guardianship Act of 1987 governs the appointment of guardianship for those dealing with decision making disability. According to NCAT orders, the guardian is legally allowed to make decisions that impact the individual’s accommodation, health, support service and other general lifestyle matters. 
The following principles govern NCAT orders with regard to guardianship:

The well being of the person with disabilities should always be given top priority 
The aim must be to maximise their freedom to the extent possible 
As far as possible, they should be encouraged to lead a normal life within the community
While acting for them, their views must always be taken into consideration 
They should always be protected from neglect, exploitation and abuse 
Family relationships, linguistic and cultural environments must be preserved

Who Is a Guardian?
A guardian is a person legally authorised to make decisions on behalf of a person with a lack of cognition or disabled decision-making ability. Please be aware that guardians are not allowed to make financial decisions. In order to be able to make financial decisions, they should be appointed as financial manager. 
In NSW, the guardian should be an adult over the age of 16. NCAT will appoint someone as the guardian only if they find that the person is suitable for the role and compatible with the person in question. NCAT must also be satisfied that the applicant does not have any conflict of interest with the person for whom decisions may need to be made. 
How Is a Guardian Appointed?
An adult can apply for guardianship or NCAT is legally authorised to appoint a guardian out of its own initiative. Once the application is lodged in court, the party will be given a hearing date when NCAT will consider the evidence presented. NCAT will also seek to involve the person the application concerns in the decision to the maximum extent possible. 
If you apply for guardianship, you can also be represented by a lawyer at the hearing. 
Review of Guardianship Orders under NCAT 
Guardians may be appointed up to a period of three years. However, NCAT may specify that the applicant should be assessed at any specified time during guardianship. At the expiration of the period of the order, NCAT must review the guardianship with respect to:

The person under guardianship
The guardian 
Another person who is a genuine well-wisher or interested in the person’s welfare 

If you require legal representation or advice regarding application for guardianship, please contact Owen Hodge Lawyers for more information. Our highly experienced litigation team can help you with NCAT disputes with regard to guardianship. 
The post What is NCAT and how can it affect me? appeared first on Owen Hodge Lawyers.

 While pursuing a family law claim in the court, it’s legally binding to provide full information regarding your finances. This is commonly known as the ‘Duty of Disclosure’ under Australian law and is legally mandatory for all parties involved in family law proceedings.
 Full and Complete Disclosure: What Does It Mean?
 According to the family law rules, 13.04, , parties involved in a family law case have a legal obligation to report certain financial information to the other side. This may include information regarding assets, earnings and financial resources as well as details about trusts or companies which may be relevant to your financial situation. It could also include information regarding a deceased estate that is under current probate.
 The Duty of Disclosure commences immediately and is valid until the matter is finally resolved in the court. Family law rules stipulate that full disclosure extends to all financial documents including those that may not appear to be relevant to the case. Failing to disclose full and honest financial information can result in losses in terms of steep fines or punitive action. Duty of disclosure applies regardless of the asset pool in question. Even if the assets are modest, each party is obliged to follow the ground rules regarding disclosure of financial information.
 At times, it can be challenging to understand the kind of financial information that you need to disclose. Having comprehensive documentation is a crucial tool for your lawyer to obtain the best outcome for your case. Details of full disclosure is also critical to understanding the position of the other party.
 You can rely on Owen Hodge lawyers to fill out court forms and respond to requests for information from the other party. Providing us with honest, upfront financial information can help us assess the information and increase the likelihood of a favourable legal outcome.
 What Documents Must be Disclosed as Per Family Law?
 The following list of documents may be required for a full disclosure. Whether the case involves property or parental proceedings, these documents must be disclosed to the court as well as to the other party (and they are obliged to do the same with their documents as well).

Payslips and tax returns (any document related to income and employment)
Bank statements, mortgage or loan documents and credit card statements
Business income (if applicable), profit and loss statements, lease and hire purchase agreements
 Insurance policies, pension statements, shares and debentures
Other sources of income such as inheritances, lottery winnings or loss of income

As leading legal consultants, Owen Hodge lawyers appreciate that family law matters can be complicated and stressful to deal with. Longstanding animosity or poor relations with the other party can interfere with smooth, hassle-free court proceedings. Our trained lawyers will update you on the documentation required for full disclosure and we will review all the information that you provide.
 Contact us today to discuss how we can help you identify and prepare financial information for full disclosure.
The post What Sort of Financial Disclosures Do I Need to Make If I’m Pursuing a Family Law Claim? appeared first on Owen Hodge Lawyers.

Annual leave in New South Wales is governed by the Fair Work Ombudsman Act and applies to all paid workers […]

The post Can I stop my employee from taking annual leave? appeared first on Owen Hodge Lawyers.

More than fifty percent of the adult population in Australia, do not have a valid Will. But what are some […]

The post The seven most common reasons people put off making a Will appeared first on Owen Hodge Lawyers.

Cities in Australia are gradually becoming more densely populated and the local area aesthetics are set to undergo major transformations. […]

The post Considering Selling Property to Developers Collectively? appeared first on Owen Hodge Lawyers.

Owning and leasing commercial property can be an exciting and profitable business. However, it is very important that during the […]

The post Important questions to ask potential commercial tenants appeared first on Owen Hodge Lawyers.