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Transferring a Lease of Crown Land? Here’s What You Need to Know

In Queensland, leases over state land are granted for various purposes such as grazing, agriculture, tourism, forestry and others as term, perpetual or freeholding leases.
In return, the lessee pays annual rent charged, in most cases, as a percentage of the land’s value.
When a “landowner” (the lessee) wishes to transfer the land to another person by, for instance, a sale or a gift, approval from the relevant government department’s minister is generally required under the Land Act 1994. This has meant that an application must be made to the Department of Natural Resources, Mines and Energy for an approval of the transfer.
However, the process has recently been simplified and, since 2 December 2019, certain categories of lease are exempt from requiring this approval.
We’ll provide some more detail below but if you are seeking the transfer of a lease or licence of Crown land and are unsure of the requirements to do so, contact South Geldard Lawyers in Rockhampton today.
When is a lease transfer exempt from ministerial approval?
Rent on state leases is determined according to different rent categories based on the use of the land and its unimproved value. A lease on which a primary production enterprise operates is classified as rental arrangement Category 11. Category 11 leases are leases predominantly for the purposes of aquaculture, viticulture and agriculture. Agriculture includes growing cane, coffee, tea, tobacco, fruit, vegetables, flowers and other horticultural crops, as well as the farming of cattle, pigs and poultry.
Within category 11 are two subcategories, including one for those who hold perpetual leases of Crown land (such as a Grazing Homestead Perpetual Lease), and another for those who hold term leases, licences and permits to occupy. The subcategories are used to determine annual rents as a percentage of unimproved land value under the Land Regulation 2009.
Leases which are not exempt, include leases where:

the lease is issued for a significant development and requires a financial and managerial capability assessment; or
the lease is subject to:

a performance guarantee bond;
a deed of indemnity;
a mortgagee in possession; or
sale by a mortgagee exercising a power of sale or with a receiver/manager appointed.

The transfer process if the lease is exempt
If your agricultural lease meets the criteria and is exempt from ministerial approval, transfer forms can be lodged directly with the Titles Registry in the same manner as you would for a transfer of freehold land.
However, a leaseholder should first ensure any outstanding rent, including deferred rent or penalty interest owing to the Queensland Government, has been paid before lodgment of these forms.
Any outstanding liabilities, such as rent or interest, become the responsibility of the incoming leaseholder once the lease is transferred.
For that reason, it is important that the parties obtain a rental clearance report by contacting the Department. These are steps that your lawyer will undertake for you when they prepare the transaction documents.
If, due to drought or other reasons, the lessee has been granted hardship concessions and/or deferral of rent, these concessions are not passed on automatically when a lease is transferred. An incoming leaseholder must demonstrate hardship in its own right and apply separately for any concessions.
Let the experts help you
At South Geldard Lawyers, our property lawyers and clerks have a strong track record helping clients in all matters relating to the transfer of land. We can help clarify whether your lease is exempt from ministerial approval and will help to streamline the process for you. We takethe stress and worry out of a lease transfer by doing all that needs to be done on your behalf so you can get on with your business.
If anything raised in this article applies to your situation, call us today on (07) 4936 9100.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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PROPERTY
RESIDENTIAL, COMMERCIAL AND RURAL CONVEYANCING
Are you buying or selling a residential, commercial or agricultural property? At South Geldard Lawyers we can help with all your conveyancing needs.GET MORE INFO
LEASING
Our property law team provides legal support and representation for clients with respect to all leases including retail leases, commercial leases, licences and sub-leases.GET MORE INFO
BODY CORPORATE AND COMMUNITY TITLE
With over 40,000 community title schemes with more than 400,000 individual lots in Queensland, legal matters regularly arise. We can help with all body corporate matters.GET MORE INFO
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We can help in determining whether you need a water licence, assistance with filing an application for a water licence and/or making the required public notices.GET MORE INFO
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We can assist with compliance issues, contract dispute or recovering moneys under BCIPA, a Subcontractor’s charge or from a project bank account.GET MORE INFO
RESUMPTIONS and COMPENSATION
If you are landowner affected by a mining lease over your property you are entitled to make a claim for compensation under the Mineral Resources Act 1989 (Qld). To find out more about your claim, contact our compensation lawyers today to arrange a consultation.GET MORE INFO
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Family Law Guide for separated parents for surviving Christmas

Most parents will have an arrangement in place for spending time with their children, whether it be on a week-to week or an alternating basis.
These arrangements can become difficult during Christmas/ school holiday time, when parents make plans for the public holidays period and travel away from home.
Negotiating your parenting arrangement with your co-parent can be tough when one parent’s schedule and travel plans conflict with the other.
Here are a few things that parents can do in advance to make the Christmas holiday period a little bit easier:

Make a plan with your co-parent

Discuss with your co-parent your ideas about how the children spend the Christmas holiday period before your accommodation and flights are booked or plans finalised as this is more likely to result in agreement and reduce any conflict.
If you and your ex-partner have agreed that the children will spend time with each of you on Christmas Day, make sure you plan such things as to what time changeovers will occur, how changeovers will occur, and who will be collecting the children. You may want to consider one parent spending Christmas Eve and Christmas Day morning with the children and the other spending Christmas Day afternoon and Boxing Day with the children.
Co-parents should be able to agree on:

Where the children will be spending the holidays, if not at home;
How, when and where changeovers will occur;
Time spent with extended family members; and
Any activities, social or religious events the children will be attending.

Communicate with your co-parent

School holidays, particularly at Christmas, can be a difficult time for children in separated families so it is important that parents are able to communicate in a child focussed way about what is in the best interests of the children. Communication does not need to be face-to- face. It is often best that parents discuss their parenting arrangements by text or email as you can both cross-check plans and decrease any confusion.

The best interests of the children

Above all else, consider how the children would like to spend their Christmas break and whether it is in their best interests. Do not ask the children directly but be in tune with their feelings and what they are saying to you. Where possible, try to ensure the children are able to see both sides of their family such as grandparents, uncles, aunts and cousins.
Remember that Christmas should be an enjoyable and exciting time of the year for children. If your relationship with the other party is conflicted and you are unable to make arrangements at Christmas time, organise for a day other than at Christmas to spend time with the children and your family, have a meal and to exchange gifts.

If in doubt, take action early

If there are no Court orders in place and parents simply cannot agree on how the children will spend the Christmas holidays, or if one parent is withholding the children from the other, you need to act quickly. In most situations, parties are required to attend mediation to attempt to solve the dispute before going to Court. You should contact South Geldard Lawyers to discuss pre-action procedures and the best course of action.
Our office is closed from 23 December 2020 and we re-open on 11 January 2021.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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Redundancy and COVID-19. What Your Business Needs to Know

Redundancy and COVID-19. What Your Business Needs to Know
Business & Employment | Video
In this video, our Courtney Brown shares some important insights on what businesses should know about redundancy and COVID-19.

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All You Need to Know About Trust Structures

While most business people have heard of trusts, it’s likely not as many really understand what they are or why you’d use one.
From the outside, trusts can look like a complicated type of investment structure only really understood by specialist lawyers and accountants. In essence, a trust is a relationship rather than an entity or a person in its own right.  It is formed when one person, the “trustee”,  holds the legal right or thing for the benefit of another person, the “beneficiary”.
In a business context, trusts are most commonly formed by execution of a deed in which a person or entity known as the ‘settlor’ gives money or assets, or a right to those things, to the trustee to “set up” the trust for the benefit of the beneficiaries.
For tax reasons, the settlor cannot be a beneficiary of the trust and so is usually an independent person such as a financial advisor or legal representative.
Beneficiaries or classes of beneficiaries are defined in the trust deed and can be named individuals, descendants of a person, a company, charity and even another trust.  The trustee itself can also be a beneficiary provided that it is not the only beneficiary.
The money or thing (which you’ll often see described in the trust deed as the “settlement sum”) forms the trust property.  The trust property can grow over time by, for example, buying or adding other assets to the fund, carrying on a business for profit, or simply by the accrual of interest earned on money held in the fund. Conversely, it can also be diminished.
Beneficiaries receive the benefit of the trust property as income or a capital distribution.
Some trusts also include a person as an ‘appointer’ who has the power to remove and replace the trustee, as well as to nominate a successor on his or her death. The considered choice of appointor should be part of an effective asset protection strategy and can be a useful mechanism for handing control of assets to particular people at a point in the future.
Why set up a trust?
There are a variety of reasons why business people may prefer a trust structure.
The simplest reason is to keep legal control of money or assets separate from a beneficiary. This could be by necessity where the beneficiary is not of legal age, or has a disability, and is not able to make his or her own informed decisions.
Trust structures also offer a way to manage tax liabilities, to protect assets from creditors if a beneficiary is at risk of becomes bankruptcy or insolvency, or as an investment vehicle by which to own real estate or a share portfolio.
The different forms of trust
There are a number of different forms of trust, but the most common are discretionary trusts, unit trusts, hybrid trusts, and superannuation funds (which are operated by a superannuation trustee).
Discretionary trusts: This form of trust is frequently called a ‘family’ trust because it is commonly used in family business or family investments.  The classes of beneficiaries are defined by reference to an individual and include his or her immediate family members, often their spouses and their various descendants and private companies controlled by the family.
The trustee of a discretionary trust distributes income and capital gains from investments and assets held in the trust to beneficiaries each year – as the name suggests – at its discretion .
The primary advantage of this form of trust relates to tax. Say, you are a trustee earning an income that places you in the highest income tax bracket. Your trust beneficiaries, by contrast, are in lower tax brackets or perhaps even under the tax-free threshold. By distributing trust income to eligible beneficiaries taxed at the lower rate, it is possible to reduce your overall tax liability. As with all things tax related, you should seek proper advice before embarking on a particular strategy as there are many traps for the unwary or uninitiated.
The trustee’s discretion to distribute income to a particular beneficiary and not to another means that beneficiaries have no legal right to claim the assets or income of the trust.  This becomes a powerful asset protection tool and a key consideration when it comes to estate planning. If a beneficiary of the trust becomes bankrupt, is being chased by creditors or is generally profligate, with proper planning, assets held within the trust can be protected from creditors seeking to recover debts. This is because the claim of a creditor or bankruptcy trustee against the trust assets is only as good as the legal right of the beneficiary to those assets or income. Until the trustee exercises its discretion, that right does not exist. Once the beneficiary is through the bankruptcy period and/or has their financial affairs back in order, the trustee may resume distributions to that beneficiary.
A further benefit of this trust structure is that a capital asset of the trust disposed after a year within the trust attracts the 50% capital gains tax discount concession on any capital gain. This discount also flows through to beneficiaries on distribution of the proceeds.
If a trust structure is used to hold a family business, small business capital gains tax concessions and the benefits of limited liability are also available. The downside is that losses in the trust are isolated in the trust and cannot be allocated to beneficiaries to offset their income (as you would for a negatively geared investment property).
Finally, a discretionary trust allows new beneficiaries to be easily admitted without the trustee losing legal control of the trust as people often fall within the classes of beneficiaries defined in the trust deed. A word of warning – there are circumstances where admitting new beneficiaries can trigger a capital gains tax event with costly tax implications for the trust.
Unit trusts: Here, a trustee holds the assets of the trust for holders of a fixed number of units in the trust.  Unlike a discretionary trust, each unit-holder receives an entitlement be it income, capital or both in proportion to the units they hold in the trust. Unit trusts are also referred to as ‘fixed’ trusts because the trustee has no discretion as to how to distribute the trust’s capital and income.
This form of trust is often used where unrelated parties run a business or wish to hold an asset together, such as in a joint venture enterprise.  Listed and unlisted property trusts are examples of fixed trusts.
Hybrid trusts: This form of trust combines the features of a discretionary and unit trust, with the assets or capital divided into fixed units but income distributed to beneficiaries according to the trustee’s discretion.
Hybrid trusts are often used where unrelated parties – such as two different family groups – wish to invest, for example, in a commercial property. Income tax, capital gains tax and asset protection advantages remain available in this structure, but respective rights and entitlements of the unrelated parties are kept apart.
Superannuation funds: Super funds are a form of trust established by a trust deed which determines each member’s entitlement and are regulated by the Superannuation Industry (Supervision) Act 1993 (Cth). The trustee maintains discretion over assets and investments in the fund and selection of a death benefit beneficiary.
Self-managed superannuation funds (SMSFs) are slightly different in that the members of the fund are also the trustees, offering greater control over investments and asset protection strategies for the retirement benefits of its members. SMSFs may comprise individual trustees where a minimum of two is required and each is appointed a trustee of the fund, or a corporate trustee where a company acts as the trustee and each member is a director. Each form has different legal obligations and ongoing administrative and compliance requirements.
How expert advice can help
The ease with which trusts can be set up “off-the-shelf” belies the legal and financial complexities which can trap those not well-versed in the form. With proper planning and advice, trusts can be a highly effective addition to your tool chest for tax planning, asset protection and succession, whether as an individual or for a company.
South Geldard Lawyers’ clients take comfort in the knowledge they can rely on our many years’ experience advising like-minded business people about the benefits and limitations of trust structures. If you need further information about whether or not a trust is appropriate for your situation, or if you would like to set up a structure like one of those outlined in this article, calls us today on (07) 4936 9100.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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What You Need to Know About the COVID-19 Insolvency Reforms

What You Need to Know About the COVID-19 Insolvency Reforms
Business | Video
In this video, South Geldard Lawyers Director, Gordon Stünzner explains the recent COVID-19 Insolvency Reforms and what it means for businesses in distress.

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EMPLOYING CASUAL STAFF? WATCH OUT FOR THESE PERILS

Employing Casual Staff? Watch out for these Perils
Employment | Video
In this video, South Geldard Lawyers Director, Ben Wright shares some insights for business owners regarding a recent Court decision in the WorkPac v Rossato case.

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Why It’s Important to Comply With a Development Approval

The enforcement of the terms of Development Approvals (DAs) in Queensland is achieved by the Planning Act 2016 (‘the Act’) which commenced in mid-2017.
Under the Act, land use planning and development is conducted on an integrated basis between local and state government. Under local planning schemes, local authorities are primarily responsible for how developments are assessed in its area under the Act but must also take into account state interests and any existing regional plan.
The local scheme will determine what aspects of a development, such as building heights, site setbacks and other restrictions, will be code or impact assessable.
In Queensland, a DA under the Act may be needed in order to undertake:

building work;
plumbing or drainage work;
reconfiguring a lot (commonly called subdivision), or
changing the use of premises (which can include intensity and scale of use).

The Act sets out the types of behaviour that constitutes an offence, including carrying out development without a development permit, undertaking prohibited development or, for the purposes of this article, failure to comply with a DA. This includes the maximum penalties for each offence and where any exceptions may apply.
The importance of complying with a DA
A DA attaches to the premises and binds the owner, the owner’s successors in title and any occupier of the premises. It remains in effect even if there is a later development approved for the lot or the premises are reconfigured.
Failure to comply with the conditions of a DA is classed as a ‘development offence’ under the Act and draws a maximum penalty of 4,500 penalty units (with the value of one penalty unit for most offences under state legislation being $133.45 as at 1 July 2020), or more than $600,000.
The enforcement authority, such as the local council, must provide a ‘show cause’ notice under section 167 of the Act. This notice is issued if the enforcement authority reasonably believes a person has committed, or is committing, a development offence; and is considering giving an enforcement notice for the offence to the person.
The show cause notice must:

state the enforcement authority is considering giving an enforcement notice to the person;
outline the facts and circumstances that form the basis for the authority’s reason for giving an enforcement notice;
inform the person that they may make representations about the notice to the enforcement authority, as well as how they should may be made and in what time frame;
include that the day or period stated in the show cause notice must be, or must end, at least 20 business days after the notice is given.

After considering representations made by the person holding the DA in response to the show cause notice, the enforcement authority may still serve an enforcement notice. Additionally, the authority need not provide a show cause notice before giving an enforcement notice to a person in certain circumstances, such as development offences relating to heritage works, or where there are public health dangers, or in regard to demolition, clearing of vegetation and other situations set out in section 167(5) of the Act.
Enforcement notices
If the enforcement authority believes a person has committed, or is committing, a development offence such as not complying with the conditions of the DA, it may serve an enforcement notice to the person or, if the offence involves premises and the person is not the owner of the premises, the owner of the premises.
The enforcement notice will require a person to refrain from committing a development offence and/or remedy the effect of a development offence in a stated way and within a specific time frame.
The notice may require, for example, the development be stopped, demolished or removed; the premises be restored, as far as practicable, to the condition it was in immediately before development was started; and to do, or not to do, another act to ensure development complies with a development permit.
A person or owner may also be asked to repair, rectify or secure the works if they are considered dangerous; stop a stated use of premises; ask the person or owner to apply for a development permit, and; provide the enforcement authority with a compliance program that show how the enforcement notice will be complied with.
Among other requirements as to the time frame in which the notice must be complied with, it should also inform the person or owner of their right to appeal against the giving of the notice. Contravening an enforcement notice carries a maximum penalty of 4,500 penalty units.
How we can help
As can be seen, the consequences of not properly complying with the conditions of a DA can be harsh. There is not only the severity of possible fines to consider, but the inevitable and possibly crippling costs and delays associated with an order to demolish, remove or stop development works.
South Geldard Lawyers in Rockhampton are one of the few regional law firms in Queensland with expertise in this area of the law. Our senior lawyers who practice in this area have extensive experience when it comes to interacting with Queensland’s planning and environment laws, including advising you on your rights and responsibilities in relation to DAs.
For greater detail on any of the material raised in this article, call us today for an initial appointment on (07) 4936 9100.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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Assessing Contributions in a Property Settlement

It is common during a marriage or de facto relationship that the husband, wife or partner made a greater financial contribution through their initial contributions to the marriage or relationship, during the marriage and even following separation. When a relationship breaks down, the party who has made a greater contribution may have questions about what they are entitled to.
There are a number of steps to determine a party’s entitlement in a family law property settlement. The first step is to know what the assets and liabilities of the relationship are (see Valuing Property in Family Law Matters). Assets can include items such as the home, bank accounts and superannuation. Liabilities may be the mortgage over the property, credit card debt or even company debts.
The next step is to look at the contributions. There are several types of contributions that may be considered and include:
Financial contributions
These can be made directly or indirectly to the purchase, maintenance or renovation of any property of the parties, which can include the deposit for the purchase of the property or where one party pays for expenses such as groceries or utility costs so that the other party can pay the mortgage.
Non-financial contributions
Contributions of this nature can be through a parties’ own labour. Examples include contributions as homemaker and parenting.
Once having determined the property pool and assessed the contributions of the parties, the next step is to review the future needs of the parties that might result in a party getting a greater percentage of the asset pool. Usually, this is the age of the parties, the disparity in income earning capacity of the parties, any health issues which impact upon the income earning capacity and care of any children of the relationship. Having taken these steps, it is then necessary to determine whether the division of property as “just and equitable”.
This is an overview of factors, particularly relating to contributions that will be considered by the Court in a property proceeding. As it is a complex area of law, it is important to get advice from a Family Law Lawyer perhaps even an Accredited Family Law Specialist.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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Formalising Your Property Agreement

You have reached an agreement with your former spouse. What do you do now?
Finalising your agreement into a legal document is important. It will help protect your assets and prevent your former partner from seeking to have an entirely new arrangement made or trying to make a new claim against your assets in the future.
There are two ways of formalising your family law property settlement agreement that ensures the agreement is legally binding:

Consent Orders made by the Family Court of Australia or
Financial Agreement entered into between you and your partner.

Documenting your property settlement by signing a letter or a statutory declaration will not be considered legally binding and you may not be able to enforce the terms of the agreement.
Consent Orders

A Consent Order is a written agreement which documents an agreed division of property within a marriage or de facto relationship. The proposed Orders and an Application for Consent Orders (that details each parties respective assets and liabilities) are filed with the Family Court where a Registrar will review the terms of the agreement.
A Consent Order will finalise your property settlement with your partner.
It is able to deal with the transfer or sale of property, payment of a sum of money to a spouse or splitting superannuation.
Consent Orders can be for property or parenting matters alone, or deal with both at the same time.
Appearances in Court are not required.
The Order sought must be within range of the split of property the Court would consider as “just and equitable”.

Financial Agreements

A Financial Agreement can be entered into before, during or after your marriage or de facto relationship.
Can be used to deal with financial settlements, including superannuation and financial support or maintenance.
Of utmost importance, for this type of agreement to be of legal effect, you and your former/current partner must have signed the agreement after each receives independent legal advice. The lawyer must sign a statement to confirm that he/she gave you advice about the advantages or disadvantages of entering into the arrangement.
Very strict legislative requirements must be followed to ensure that the agreement is binding and enforceable.
Financial Agreements are at risk of being set aside if it not drafted correctly or the legal requirements are not met.
A Financial Agreement is able to be used when the agreement is not “just and equitable”.

If you have reached an agreement with your former spouse/partner, we recommend that you contact one of South Geldard Lawyers experienced Accredited Specialists or Family Law solicitors to obtain legal advice regarding what your property entitlements may be before formalising any legal documents.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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Business Interruption Insurance – Test Case

If your business has suffered financially during the pandemic, and you have business interruption insurance, you may be interested to follow the progress of a test case launched through the NSW Supreme Court system by the  Insurance Industry and Financial Services Ombudsman.
A number of our clients have advised their claim for business interruption insurance has been rejected because of the wording in their policy relating to references to the Quarantine Act of 1908 and not the Bio Security Act of 2015.
A Court interpretation will provide direction for insurers, brokers and clients as to whether a claim would be successful.
The ramifications for insurance claims in Australia could well amount to hundreds of millions of dollars in payouts if the test case is upheld by a Court.
The case will most likely be strenuously defended by the insurance companies and there will be significant time taken for the matter to work its way through the Court system.
If you have not already contacted your broker or insurance company in respect of a business interruption claim you should do so immediately to at least register your interest and lodge a claim under your policy.  You may also want to lodge a complaint with the Australian Financial Complaints Authority.
This will be a high stakes test case for the insurance industry and will have major ramifications for the business community if the case is successful.
We will monitor progress of the test case through the Court system however in the meantime if you wish to discuss the terms of your business interruption insurance, one of our commercial lawyers will be able to assist you.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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Jobkeeper Extension Update

On Friday, the Federal Government announced further changes to JobKeeper extension beyond September:

To be eligible for JobKeeper payments in the December 2020 quarter, businesses will now only need to show a decline of 30% in the September 2020 quarter, compared to the September 2019 quarter;
To be eligible for JobKeeper payments in the March 2021 quarter, businesses will now only need to show a decline of 30% in the December 2020 quarter, compared to the December 2019 quarter;
The date for eligible employees for the JobKeeper extension has been extended to 1 July 2020 from 1 March 2020

For businesses that fail the basic turnover test as outlined above, the Tax Commissioner is able to provide alternative tests to meeting the decline in GST turnover criteria, as was the case with the initial eligibility.  These are yet to be determined for the JobKeeper extension.
To be eligible for the JobKeeper extension, the decline in turnover will be actual GST turnover for the relevant quarter, not projected turnover, as was the case with the original JobKeeper eligibility criteria.
It also seems that the BAS lodgement basis will be the basis this time around, which might mean that there is no option between cash or accruals, unless the basis is changed in the BAS.  Consideration may need to be given to this, if the legislation permits this to happen.

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What Does the Brett Cattle Company Class Action Mean for Government Decisions?

The recent Federal Court decision in Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732 (‘Brett Cattle’) has implications for future decisions by Federal government ministers in relation to not only the live cattle industry, but also other enterprises.
In a case which made national headlines from beginning to end, Justice Rares of the Federal Court ruled that a six-month order by former Minister for Agriculture Joe Ludwig which banned live export of cattle to Indonesia was invalid, and that the Minister committed the tort of misfeasance in public office when he instituted the ban.
In this post we’ll look at the facts of Brett Cattle and some of the questions it raises about future decisions by Federal government ministers.
The facts of the case
The origins of the Brett Cattle case are found in a report on ABC’s Four Corners in May 2011, which showed distressing footage of the inhumane treatment and slaughter of Australian cattle exported to Indonesia.
Public reaction to the footage was strong, with many calling for live cattle export from Australia to be banned in whole or in part. In reaction, a few days after the TV report Minister Ludwig ordered that Australian cattle could not be exported to 12 Indonesian abattoirs, unless each could satisfy the Minister that its practices met an internationally recognised animal welfare standard.
This order was followed by a second order in which the Minister banned the export of all livestock to Indonesia for a period of six months, with no exceptions.
Both orders were facilitated by delegated legislation, which means they were not enacted by an Act of Parliament but by a Minister – Ludwig – within the Executive government empowered to make these orders under the authority of another Act of Parliament, the Export Control Act 1982 (Cth).
As a result of Ludwig’s decisions, cattle exporter Brett Cattle Company Pty Ltd became the representative plaintiff in a class action brought against Ludwig which argued the live export ban was invalid and that the Minister committed the tort of misfeasance (doing an act which – while it may still be legal – was done improperly and caused harm) in public office.
Brett Cattle said Ludwig’s decision had caused it to lose the opportunity to sell more than 2,700 head of cattle into the Indonesian market resulting in losses of more than $2.4 million.
The Federal Court decision
On 2 June 2020, after 18 months of deliberation, Justice Rares found former Minister Ludwig had acted with misfeasance when he introduced the ban in 2011.
Justice Rares described the ban as “invalid and capricious” and that the Minister had been “recklessly indifferent” both in regard to his power to institute the ban without providing any power of exception, and also to the injury to cattle exporters which resulted.
The judge said Ludwig had “plunged on regardless” despite being told by industry representatives that the exports could be conducted in a more tightly-controlled manner, and without attempting to find solutions to the problem with the Indonesian government. It was also found there had been no advice from his Department about an exclusive ban on exports to Indonesia.
Specifically, the Minister’s decision failed two elements of the established proportionality test of being both necessary and adequate in its balance, in particular because means other than total prohibition were available and also because no exceptions were available. This meant a large number of exporters were prevented from carrying on their lawful businesses, even where those businesses did not involve, or could have prevented, livestock being treated inhumanely. The operation of the ban also impacted the industry unequally because it only applied to exports to Indonesia, ignoring other markets.
“He made the Ban Order shutting his eyes to the risk that it might be invalid and to the damage that it was calculated to cause persons in the position of Brett Cattle,” said Justice Rares.
The class action applicants were therefore entitled to compensatory damages from the Commonwealth. The 300 parties to the action had been seeking up to $600 million in compensation for lost income as a result of the ban.
The implications of the judgment
While it’s unclear at the time of writing whether the Federal government will appeal the decision in Brett Cattle, the decision by the Federal Court has wider implications for decisions made by government Ministers.
Firstly it should ensure that Ministers take greater care in implementing large policy decisions, particularly under delegated legislation powers and where those policy decisions have the potential to cause significant economic loss to private enterprise. Decision-makers such as Ministers will likely be more inclined to make policy through legislation passed through the Parliament, rather than delegated legislation, as well as take more specific advice on the likely validity of certain decisions.
The decision may also encourage other class actions against government decision-makers where misfeasance by that person or persons can be proved. Importantly, the decision confirmed that ‘reckless indifference’ by the decision-maker to the effects of the decision is enough to prove misfeasance, rather than the additonal element of ‘malice’ that was once required.
The decision in Brett Cattle remains a ‘watch this space’ issue for those who operate in industries vulnerable to sudden changes in government policy decisions, such as cattle export. Successful challenges to delegated legislation on the grounds argued in Brett Cattle remain rare, with no consensus view on the High Court as to the relevant test to apply to determine validity. This means an appeal on the Brett Cattle decision may yet be successful.
If you are concerned about the impact of government policy on your industry, contact South Geldard Lawyers today for guidance and advice. Our speciality is advising primary producers about their rights and obligations in regards to government legislation. Speak with us today on (07) 4936 9100 or through our website to arrange a fixed fee first appointment with a member of our legal team
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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The Importance of Due Diligence When Purchasing a Commercial Property in Queensland

Commercial property is an asset class that can provide good returns if you buy at the right time, in the right place, and can instal good tenants.
It’s also a considerable investment, however, and for this reason it pays to do proper due diligence on any commercial property before you commit your money to a final settlement.
Due diligence comprises in-depth investigations on a range of pertinent issues so that you can make a decision on purchasing the property with confidence that it is not encumbered or burdened with problems that may reduce your expected return on investment.
Specialist commercial legal professionals can be invaluable during this process, helping you identify the right questions to ask and sourcing the right documents to answer those questions.
What sort of issues are addressed by due diligence?
A comprehensive due diligence process encompasses research and investigations into technical, legal, financial, planning, environment and risk management issues around the asset.
This process might begin with a series of questions such as whether the property is located in an area prone to natural disasters; whether any previous use of the land has resulted in contamination; whether the property is properly connected to water, sewage and power; whether any permits or licences are needed in order to build on or otherwise use the land; and whether there are any cultural or environmental covenants over the land.
Specialist building consultants will often be engaged by people purchasing highly valued commercial property to compile a technical report that assesses the building façade and walls (external and internal), roof and guttering, ramps and stairs, entry lobbies, floors and floor finishes (carpets, tiling, etc.), ceilings, stairways and amenities such as kitchenettes.
This report will generally also provide detail on a commercial structure’s mechanical and electrical systems such as lifts, escalators, switchboards and airconditioning, as well as fire protection systems, water supply, sewerage and stormwater systems.
It’s also important for a would-be purchaser to be fully cognisant of all planning and environment issues pertinent to the property. This may involve reviewing current zoning and height restrictions, original occupation and development certificates, fire safety statements, environmental or heritage assessments, and any existing contamination issues such as asbestos, for example.
What type of financial and legal issues are involved?
The potential purchaser of a commercial property needs to be fully aware of current rental market conditions if the property is untenanted.
If it is already leased, due diligence will involve assessing the current lease arrangements. This will require sourcing the lease document (from either the current owner or even the tenant) to review its terms, including:

lease expiry dates and options to renew, including how and when rent is reviewed;
planning approvals granted prior to entry into the lease;
presence of any restrictions within the lease agreement that could affect the sale or the capacity to expand the building, or on certain uses;
details of any bonds/deposits/bank guarantees held;
details of arrangements regarding maintenance and repair (who pays for what, etc.);
details of any caveats lodged;
whether the tenant/s are in arrears;
details of any issues regarding the premises raised by the tenant;
what insurances does the tenant have in place and has the tenant paid all required premiums;
whether GST is being charged – long-term leases may not include this provision, affecting the purchase decision.

Legal professionals experienced in commercial property transactions can conduct the investigations outlined above on behalf of the prospective purchaser.
They will also check off other common legal issues around commercial property, such as signage rights; the terms of existing maintenance contracts (for example, cleaning, mechanical systems); check details of current insurance policies; discover any unregistered interests such as car parking arrangements; conduct ASIC and court registry searches (including bankruptcy register) on existing tenants; and review all documents for details on easements, caveats, restrictive covenants, notifications, memorials or other encumbrances.
While the due diligence process may require the cooperation and assistance of the vendor, the onus is on the purchaser to conduct their own investigations. They may be legally exposed should they purchase and later discover something that would have been uncovered during a more thorough due diligence process.
How we can help
At South Geldard Lawyers, we have many years experience in conducting due diligence for clients wishing to purchase commercial property.
We can condense the various reports mentioned above into one document, including those of any external consultants, valuers or market analysts, to assist you to make the most informed decision possible on committing to the property.
For an initial fixed fee appointment, please contact us today on (07) 4936 9100 if you have any plans to purchase a commercial property.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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Breaking News: Annual Wage Review By Fair Work Commission

The Fair Work Commission’s Expert Panel has awarded a 1.75% increase to the national minimum wage and the minimum wages in Modern Awards.
Accordingly, all Modern Award minimum weekly wages will be increased by 1.75%. However, the increase will apply to different groups of Modern Awards from different dates in order to accommodate for the adverse effects of the COVID-19 Pandemic.
01 July 2020: National Minimum Wage and Group 1 Awards
Group 1 applied to industries and sectors less affected by the pandemic. It includes frontline health care and social assistance workers, teachers and child care workers, and workers in other essential services who have continued to work throughout the pandemic to keep the community safe and the economy functioning. The Modern Awards in Group 1 include:

Children’s Services Award 2010
Cleaning Services Award 2010
Educational Services (Schools) General Staff Award 2020
Educational Services (Teachers) Award 2010
Health Professionals and Support Services Award 2020
Nurses Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010

01 November 2020: Group 2 Awards
Group 2 applied to industries and sectors that were mildly affected by the pandemic. It primarily includes construction and manufacturing workers. It also covers workers in services who may have continued to work throughout the pandemic with a reduced tempo or had a brief stand-down period but are not considered to have been severely impacted by the COVID-19 pandemic. The Modern Awards in Group 2 include:

Building and Construction General On-site Award 2010
Clerks—Private Sector Award 2020
Food, Beverage and Tobacco Manufacturing Award 2010
Gardening and Landscaping Services Award 2020
Legal Services Award 2020
Local Government Industry Award 2020
Mining Industry Award 2020
Pastoral Award 2010
Professional Employees Award 2020
Road Transport and Distribution Award 2020
Security Services Industry Award 2020
Sugar Industry Award 2020

01 February 2020:  Group 3 Awards
Group 3 applied to industries and sectors that were severely affected by the pandemic. It primarily includes accommodation and food services, arts and recreation service  and tourism related industries. It also covers workers in industries such as retail trade and beauty, as well as the airline industry which, due to Government restrictions during the COVID-19 Pandemic, were significantly impacted. The Modern Awards in Group 3 include:

Amusement, Events and Recreation Award 2020
Commercial Sales Award 2020
Fast Food Industry Award 2010
General Retail Industry Award 2010
Hair and Beauty Industry Award 2010
Hospitality Industry (General) Award 2020
Live Performance Award 2010
Nursery Award 2020
Registered and Licensed Clubs Award 2010
Restaurant Industry Award 2020

The increase applies to minimum wages for all employees, including junior employees, trainees and apprentices, employees with disability, and to piece rates. Weekly wages will be rounded to the nearest 10 cents.
The national minimum wage will be $753.80 per week or $19.84 per hour. This constitutes an increase of $13.00 per week to the weekly rate or 35 cents per hour to the hourly rate.
If an Enterprise Agreement applies to an employee and the employee would otherwise be covered by a Modern Award, then the employee’s base rate of pay under the Enterprise Agreement must not be less than the base rate of pay that would be payable to the employee under the Modern Award.
If an Enterprise Agreement applies to an employee and the employee is not covered by a Modern Award, then the employee’s base rate of pay under the Enterprise Agreement must not be less than the national minimum wage.
If no Enterprise Agreement or Modern Award applies to an employee, then the employee cannot be paid less than the national minimum wage.
The wage submissions from the major industrial bodies were as follows:

ACCI proposed that there should be no increase, but if there were an increase it should not operate 01 January 2021;
AiG also proposed that there should be no increase; but if there were an increase it should not operate until after 01 January 2021 and
ACTU suggested a 4% increase, and opposed any deferral of an increase.

Should you require further information, please do not hesitate contacting South Geldard Lawyers.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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Workpac V Rossato: A “Double-Dip” For Employee Entitlements?

With a 1025 paragraph judgement and an appeal imminent, the Full Bench of the Federal Court of Australia have recently published their reasons for judgement in the matter of WorkPac Pty Ltd v Rossato [2020] FCAFC 84 (“WorkPac v Rossato“). The decision – considered controversial by many – has employers concerned about their accountability to employees if they are found to have misclassified their employment as “casual”. If you are an employer with casual employees, or are considering taking on casual employees in the future, it is crucial to understand what was decided in this case and how it could impact the way you engage your employees.
Rossato was employed by WorkPac, a labour hire company that focuses on the provision of employees in the mining industry. Between 2014 and 2018, Rossato worked as a “Casual [Field Team Member]” under six consecutive employment agreements at two mines in the northern part of the Queensland Bowen Basin.
Rossato sought to prove that although he was employed by WorkPac on a “casual” basis, he was actually a permanent employee during his employment and could therefore claim unpaid permanent employee entitlements (such as annual leave) (“Permanent Entitlements”).
What are the Considerations for Determining if an Employee is Casual?
The predominant consideration used to determine that Rossato not was a “casual” employee was the “firm advanced commitment” test. This test asks: does the employee have a firm advance commitment from their employer to “continuing and indefinite work according to an agreed pattern of work”? If they do, their employment is not “causal”.
What was Decided in Workpac V Rossato?
Briefly, it was decided in WorkPac v Rossato that:

Despite Rossato’s classification and treatment as a “casual” employee by WorkPac for the duration of his employment, he was:

an employee “other than [a] casual employee” for the purposes of the paid annual, carer’s and compassionate leave, and public holiday pay provisions of the FairWork Act 2009;
a “Permanent [Fulltime Team Member]” for the purposes of the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 (being the relevant enterprise agreement) (“the Enterprise Agreement”); and
entitled to restitution for the relevant unpaid Permanent Entitlements.

WorkPac was not entitled to “set-off” extra payments made to Rossato throughout his employment (amounts they claimed were “casual loading” or extra payments made to Rossato in lieu of Permanent Entitlements) against the amounts the court found to be owing to Rossato for unpaid Permanent Entitlements.
WorkPac was not entitled the claim the “set-off” amount mentioned in point two above through the contractual concepts of “failure of consideration” or “mistake”.

The Double-Dip Effect
Point two above is the most concerning for employers, creating what appears to be a “double-dip” effect for employees claiming Permanent Entitlements for being misclassified as “casual” during their employment. This is because the purpose of “casual loading” payments is to compensate causal employees for not being able to claim Permanent Entitlements. Therefore, an employee being awarded Permanent Entitlements whilst simultaneously being allowed to keep any causal loading payments previously provided by an employer is seemingly a “double-dip”.
In this case, Rossato was able to successfully claim against WorkPac for unpaid Permanent Entitlements without the court taking into consideration any extra payments claimed to be made to Rossato on account of being a casual employee.
Why Workpac was Not Able to “Set-Off” Any Extra Payments?
WorkPac sought to rely on the concept of “set-off”. In some circumstances, this concept has allowed employers to have the amount they owe an employee for unpaid permanent employee entitlements reduced by taking into account casual loading payments the employee was receiving during their employment. However, it must be clear that the extra amount paid to an employee was in lieu of an award obligation (such as Permanent Entitlements).
So why did the court not accept WorkPac’s claim to have Rossato’s casual loading set-off against his award of Permanent Entitlements? Although not the only reasons provided, the following were notable in the judgement:

The Enterprise Agreement was the only instrument related to Rossato’s employment that dealt with the allocation of casual loading for those employees who were “Casual [Field Team Member]”. Rossato was previously found not to be a “Casual [Field Team Member]” under the Enterprise Agreement. Therefore, the court found that no part of Rossato’s previous earnings were specifically allocated to casual loading and WorkPac had no basis for setting off any part of Rossato’s previous earnings against his award of Permanent Entitlements.
Rossato’s pay slip did not show any separate amount being paid to him in lieu of Permanent Entitlements.
The casual loading payments were not made to Rossato at the times the Permanent Entitlements would be owing. For example, leave entitlements only become due and payable when an employee uses the leave or have unused leave at the end of their employment. However, the extra amounts WorkPac claimed was casual loading were paid systematically as an increase in Rossato’s pay.
Regulation 2.03A of the FairWork Regulations 2009 (which is the legislative source of the concept of “set-off”) does not apply because Rossato was seeking payment of his actual Permanent Entitlements, and not an amount “in lieu” of these entitlements. This regulation provides that the employee must be claiming an amount “in lieu” of their Permanent Entitlements for their employer to have “casual loading” payments taken into consideration. The application of this regulation in WorkPac v Rossato has brought into question the utility of this regulation and has increased the call from employer groups for reform.

What does this Decision Mean for Employers?
Even though WorkPac has confirmed it will be seeking to appeal this decision to the High Court of Australia, employers should not be complacent. WorkPac v Rossato has made it clear that employers are not always protected by the concept of “set-off” if they mis-classify a permanent employee as “casual”.
The consequences for employers (even if the misclassification was unintentional) can be costly, with the Australia Industry Group predicting that employers could be exposed to approximately $14.2 billion in similar claims should the decision stand. Given the current financial hardship many employers are experiencing due to COVID-19, employers should act fast in reviewing their current arrangements with casual employees. For the time being, employers’ concerned about this decision should review how the concept of “casual loading” is expressed in their employee’s relevant award/enterprise agreement and whether their employment contracts require amending to ensure certainty with the allocation of “casual loading” amounts.
South Geldard Lawyers has experienced employment lawyers who can assist…
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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What is a Family Provision Claim?

A Family Provision Claim (FPA) refers to a claim which a person can make against a deceased estate if they have been left out of a will or have not received sufficient for what is described by the law as their “proper maintenance and support”.
Only persons who are described in the law as “eligible persons” may apply.
Who is classified as an eligible person?
A spouse, child or a dependent of the deceased person are those who can make an FPA.
Spouse includes a husband or wife, de facto partner, a dependent former husband or wife, or civil partner. It is possible the deceased person has more than one spouse. A child of the deceased encompasses natural children, stepchildren and adopted children, while a ‘dependent’ includes any person who was wholly or substantially maintained or supported by the deceased at the time of his or her death and who is:

A parent of the deceased; or
the parent of a surviving child under the age of 18 years of that deceased person; or
a person under the age of 18 years.

How are FPA’s dealt with by the court?
To be successful with a claim, it is not sufficient that the disappointed beneficiary feels hurt about being left out of a will or not being treated as generously as other beneficiaries, nor it is sufficient to point to the will being unfair.
The court will take a broader view of all your financial circumstances in assessing whether provision for you in the will was inadequate. Some of the factors taken into account include:

The net value of the estate (after debts, taxation, funeral and other expenses have been deducted);
the financial position of the person making the FPA;
the age, health and earning capacity of the applicant;
the independent means of the applicant because of any gift, transfer or other provision made by the deceased during their life, or from any other source;
the closeness of the relationship between the applicant and the deceased;
whether the applicant contributed to the deceased’s estate during the latter’s lifetime, or to his or her welfare;
the competing claims of any other beneficiaries, including their financial position and circumstances;
the character and the conduct of the applicant, which the court may find disentitles them to a share, or a bigger share, of the estate.

Based on these factors, the court will then determine what provision if any ought to be made.
What are the time limits on an FPA?
An applicant must commence the claim by filing the application within nine months of the death and a detailed affidavit in support of their claim.
It is important also, that written notice of the intended application be given to the deceased’s personal representative (the executor or administrator of the estate) within six months of their death. If this notice is not given, the personal representatives are able to distribute the estate without regard to your claim.
Later applications can be made but only if the court grants an extension based on the particular circumstances of the case.
How expert legal professionals can help
There are numerous steps involved in making an FPA, in addition to the time limits imposed by the law. Seeking the guidance of a legal professional with experience in wills and estates is vital in giving an FPA the best chance of success.
Most FPAs settle prior to or at a mediation which the court requires the parties to undertake before the application can proceed to trial. A lawyer well-versed in the FPA process is crucial at this stage.
At South Geldard Lawyers in Rockhampton we have the experience to provide practical advice tailored to your case. If you have questions or concerns regarding making an FPA, contact us today on (07) 4936 9100 or through our website to arrange an appointment.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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Are All Casual Employees Now Permanents?

A Federal Court decision handed down on 20 May 2020 may raise more questions than it has answered.
Casual employment and the consequences for employers of misclassifying employees have been vexed issues since the 2018 decision of the Federal Court regarding the employment of Mr Paul Skene by WorkPac Pty Ltd.  In that case the Court found Mr Skene, who was described in his employment contract as a casual employee, was in fact a permanent employee and entitled to be paid for accrued annual leave and other entitlements.
Since the Skene case Workpac has been further involved in a test case dealing with similar issues in relation to a different employee, Mr Robert Rossato.  Mr Rossato was also described by Workpac as a casual employee and was paid an amount for casual loading. Following a demand from Mr Roassato for payment of entitlements owed to him as a permanent employee, Workpac sought various declarations from the Federal Court in relation to Mr Rossato’s employment. They included:

A declaration that Mr Rossato was a casual employee;
A declaration that that Mr Rossato’s pay incorporated a casual loading of 25% of the applicable minimum pay rate in lieu of Mr Rosatto’s entitlement to annual leave and personal leave;
A declaration that the loading paid to Mr Rosatto could be offset against the value of those entitlements, (if they were owed);
Restitution of part of the remuneration paid to Mr Rossato if WorkPac made a mistake when classifying Mr Rossato as a casual employee and setting Mr Rossato’s rate of pay (which Workpac claimed was fixed on the basis that that Mr Rossato was a casual employee).

In summary the Federal Court found on Wednesday 20 May 2020 that:

Mr Rossato was not a casual employee;
Mr Rossato was entitled to paid annual leave, personal leave and for public holidays; and
WorkPac was not entitled to either restitution or set off against those liabilities.

The decision in Rossato illustrates the consequences of misclassifying permanent employees as casuals. It also illustrates the difficulties employers are likely to encounter in claiming set-off or restitution in response to a claim of the sort that arose in Skene and Rossato.
Given the potential ramifications for employers, please contact our team at South Geldard if you have any queries regarding staff classification or payment.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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Valuing property in Family Law matters

You may have just separated from your partner or have been separated for some time. A division of property remains to be resolved between you.
If you are legally married, then you have a period up to 12 months after your Divorce Order becomes final within which to finalise a property settlement. If you were in a de facto relationship, you have a period of two years from the date of separation to file a court application to determine your property interests.
The first step in the process is to identify and value property (including superannuation) and liabilities.
Where the parties agree on a value of the property
 The simplest way to value property is by agreement.
Bank accounts can be identified by relevant bank statements. Agreement as to the value of superannuation can be determined by reference to an up to date statement. Alternatively, the superannuation fund can be asked to value a spouse’s interest in superannuation by a superannuation information request which can be sent to the superannuation company by the non-member spouse without the member being informed.
A registered valuer is able to value any asset about which agreement cannot be reached after having regard to appraisals or online valuations such as redbook.com.au which is often used for motor vehicles.
It is preferable that each of the spouses, through their lawyers, jointly instruct one valuer to carry out valuations so as to minimise a dispute between experts.
It is important to understand that in determining the value of tools and furniture, it is not the price which you have paid for the article, but rather a price which the article might attract at a garage sale or auction.
It is important to remember that the value including property and liabilities is to be taken at its current value when dividing the property and not the value at the date of separation.
If you need advice on your entitlement on a division of property or if you need to seek permission to file an application in the court out of the usual time limits, South Geldard Lawyers can assist.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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Do I have to Leave our House when we Separate?

Usually on the breakdown of a relationship, one party moves out of the matrimonial home, leaving the other party to continue to reside in the property. But what happens if neither party wants to leave or one party wants to ‘evict’ the other?
Both parties are entitled to remain living in the property unless there is a Domestic Violence Order in place excluding one person from living with the other.
The only other means of excluding one party from the property is by making an application to the Court for an order for sole occupancy of the home.
Such an order may be sought by either party of the marital or de-facto relationship and the Court has wide discretion in determining whether to make such an order. The Court regards the exclusion of a person from their own home to be a serious matter and cases on this issue illustrate they will not decide to do so lightly.
Relevant factors that the Court have considered are:

The needs of children
The means and needs of the parties
Any hardship to either party or to the children
The conduct of the parties.
Whether either party has access to alternative accommodation.

A court will not order that a spouse vacate the former matrimonial home merely for the convenience of the other party.
Can separated parties continue to live in the family home?
Couples who have decided to separate can remain living “under the one roof” following separation. If the parties later wish to divorce, they must be able to prove:

They have separated (that is their relationship has broken down)
They have lived separately and apart for a continuous period for a less 12 months.

Spouses will be considered to have lived separately and apart under the one roof so long as they can prove that there has been a change in the marriage and have separated.
Issues to be considered are:

Change in sleeping arrangements (i.e. one person moved into the spare bedroom),
Reduced shared activities or family outings,
No longer doing household duties for each other,
Each person has separate bank accounts and change to how household bills are paid,
Informed friends and family or other persons that you have separated and
Any other matters that show the marriage has broken down.

South Geldard Lawyers are able to assist you in your property settlement, make an application for exclusive occupancy if necessary or provide advice if you receive an application to be removed from your property. South Geldard Lawyers have a Family Law team ready to assist you.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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RELATED NEWS
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Keep up-to-date with our legal news.

Do I have to Leave our House when we Separate?In Article, Family22 May 2020
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Our legal team are up-to-date with legal developments and understand their relevance to you.
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Important Changes to Commercial Leases

As a result of the National Cabinet Meeting on 7 April there have been numerous changes relating to commercial leases.
The Prime Minister said as follows:

The Code which is to legislated will be mandatory.
It will apply to tenancies where either the tenant or the landlord are eligible for the Job Keeper Program.
Landlords must not terminate a lease or draw on a tenant’s security.
Tenants must honour their leases.
There is a moratorium on evictions.

Rent is to be reduced proportionate to a trading reduction in the tenant’s business through a combination of:

Waivers of rent:

Waivers of rent must account for at least 50% of the reduction.

Deferral of rent.
Deferrals must be covered of over the balance of the lease term and are to be no less than a period of 12 months.
If the lease term goes for three (3) years the costs of the rent deferment can be amortized over that three (3) year period.
If a lease only has another 6 months to run a tenant would have a minimum of twelve (12) months after the pandemic period to cover the deferrals of rental payments.
Arrangements will be overseen through a binding mediation process.

In question time, the Prime Minister was asked what happens if a landlord does not want to engage with their tenant in the process.
The Prime Minister answered that landlords are legally required to do so and by not following the legal requirements they will forgo their rights under the lease.
The Prime Minister also urged Banks to come to the table and provide support to landlords.
The Code is designed to preserve the lease, preserve the landlord/tenant relationship, to keep tenants in their properties and preserve the value of the assets that underpin the lease.
We are yet to see the actual Code and there will of course be more detail in it.
If you have any queries, please do not hesitate to contact South Geldard Lawyers.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.

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