As everyone will be aware, the Coronavirus (COVID-19) is having a significant impact across Australia and the globe.  With the situation changing on a daily basis, our focus is keeping our people healthy and safe and assisting our clients in this ever-changing environment.
Taking into account the advice of our State and Federal Governments, we have implemented measures prioritising the safety of our people and our clients. These measures include conducting appointments via telephone and practising safe social distancing with each other and our clients. The measures will be in place until further notice and will in turn help look after the broader community.
If for any reason we are not permitted to work from our office, we have the capacity to work remotely to ensure we can meet your needs. It is our aim to maintain a high level of client service and business continuity in these uncertain and ever-changing times. We are confident the plans we have implemented will ensure this.
It will otherwise be business as usual for us and for our clients. We continue to have the capacity to deliver on your needs with the expectations you have come to expect from us. We will be available as normal, notwithstanding that the majority of our engagements will need to occur via email or telephone rather than face-to-face.
All correspondence and documentation can continue to be sent via email, through the post or via our mail slot in the front door.
We acknowledge this is not the ideal method of working with you but these are not ideal times and we believe it is a necessary and practical approach to protect everyone’s health.
We will contact you if you have an upcoming appointment at our office. As always, please contact us if we can assist you in any way.
23 March 2020

Whyte Just & Moore are happy to announce that Grace Inness is now working with us in the capacity as a lawyer. Grace, who has authored the below article, “Purchasing Property: Joint Proprietors v Tenants in Common”, was previously employed by us as a Personal Assistant whilst she completed her law degree through Deakin University. Congratulations Grace!
Grace graduated from Deakin University with a Bachelor of Laws (Honours) and a Bachelor of International Studies with Distinction in 2017. Grace was admitted to practice in the Supreme Court of Victoria in June 2019 and commenced employment with Whyte Just & Moore as a Lawyer in August 2019. Some of our clients and connections will have had dealings with Grace in the past and will now encounter her in her new capacity which we are excited about.
Grace’s key practice areas include Property Law and Family Law. Grace is a member of the Law Institute of Victoria and the Geelong Law Association.
Grace’s interests outside of work include going to the cinema, reading and dining out.

When property is purchased by two or more people, it is important to consider the “manner of holding”. That is, whether the property will be held as joint proprietors or tenants in common.
When property is held as joint proprietors, if one of the owners dies, the property will automatically pass to the surviving owner(s). The property therefore does not form part of the deceased person’s estate and cannot be left to another person in the deceased person’s Will. This is called the right of survivorship. Married or de facto couples will often own their property as joint proprietors.
When property is held as tenants in common, two or more people own their own share of the property. The property can be owned in equal or unequal parts to suit your circumstances. For example, if the property is owned by two people as tenants in common, each person may own a 50 percent share in the property or alternatively, one person may own a 99 percent share and the other person may own a 1 percent share. There is no right of survivorship for property held as tenants in common. This means that the deceased person’s share in the property does not pass to the surviving owner(s). Therefore, a person’s share in the property can be left to another person in their Will.
It is important to give consideration to which form of ownership best suits your circumstances. If you are considering purchasing property and have any queries or would like further advice, please arrange an appointment with one of our experienced Property Lawyers.
Grace Inness
Lawyer

The transfer of real estate between spouses or domestic partners is often considered for asset protection and/or taxation purposes. However, the stamp duty implications of any such transfer should also be an important consideration as a significant stamp duty liability may make such a transfer unfeasible (even in light of any asset protection/taxation benefits). The stamp duty implications of any transfer between spouses/domestic partners is particularly relevant following recent changes to stamp duty legislation.
Prior to 1 July 2017, the transfer of real estate between spouses or domestic partners was exempt from stamp duty regardless of the nature or use of a particular property. However, recent legislative changes have significantly reduced the scope of spouse/domestic partners transfers that are exempt from stamp duty. Since 1 July 2017, only transfers of a principal place of residence (PPR) between spouses/domestic partners for no consideration are exempt from stamp duty. For example, the transfer of a residential property leased for investment purposes between spouses would previously have been exempt from stamp duty. However, since 1 July 2017, the same transfer would now attract stamp duty payable on the market value of the property.
Under the new system, a transfer between spouses/domestic partners will only be exempt from stamp duty if:

the parties to the transfer are spouses or domestic partners;
the property is residential property (for example – the property cannot be commercial or industrial property); and
at least one of the parties receiving the stamp duty exemption (i.e. one of the transferees) occupies the property as their principal place of residence for a continuous period of at least 12 months commencing within the 12 month period immediately after the transfer; and
there is no consideration for the transfer.

Any person consideration transferring property between or to their spouse or domestic partner should consider whether such a transfer will attract a stamp duty liability. If you have any questions or need advice, feel free to make an appointment with one of our experienced Property Lawyers.
Angus McDiarmid
Lawyer

The recent case of Agius & Jersey [2019] FCCA1319 is an interesting case about a short marriage, financial contributions by the Husband and significant future needs of the Wife.
This case shows the process of considering the length of the marriage, the asset pool size, the financial and non-financial contributions of each party and the future needs of the parties to ensure an overall fair and equitable division of the asset pool.
The case is also significant in that despite the Wife contributing very little to the marriage in either financial or non-financial contributions, her low intellect was a significant future need of hers which was required to be taken into consideration to ensure a just and equitable outcome in all the circumstances.
The marriage was of 5 years duration. There were no children of the marriage. The Husband was aged 37 and the Wife was aged 30. The Husband worked as a labourer and came to Australia on a spouse visa. The Wife did not work and had no capacity to work. The Court accepted medical evidence that the Wife had an IQ of 53 and that there was no prospect of the Wife working and obtaining an income. The Wife only had capacity to undertake basic home duties.
At the time this matter came before the Court the Husband had remarried and had two children with his second Wife.
The Husband had been the sole financial provider for the marriage being the one who worked on a full-time basis. The parties had purchased a home together with the first home owners grant and a $45,000 loan from the Husband’s aunt. The loan to the aunt had been repaid by the Husband to the sum of $30,000 and $15,000 remained outstanding.
The assets of the parties were substantially the equity in the home of $252,000 and the Husband’s superannuation of $12,300. The balance of the loan to the aunt was not considered by the Court as there was no evidence that the loan would be recalled any time soon.
The Court found that the Husband’s financial contributions were significant. The Court found that the contributions of the Husband were 75:25 in his favour over the Wife.
The Court then considered the future needs of the parties. The court noted that the Husband had two children from his current marriage and that he had capacity to earn an income. The Court said however that the Wife was subject to her disability for the entirety of her life and her employment prospects were non existent. The Court said that the future needs of the Wife were very significant and determined 75:25 in her favour over the Husband.
When balancing the financial contributions of the Husband and the future needs of the Wife the overall outcome was a 50:50 division of Husband’s superannuation and the equity in the home.
Our family law team is able to assist with any advice you might need, now or in the future.
Bridgette Kelly
Accredited Family Law Specialist

We are sadly all too aware that financial abuse can and does take place in our communities against elderly and vulnerable people whom we should be protecting. A recent WA case highlighted this where an elderly woman with dementia, who did not have any Powers of Attorney in place, was taken advantage of by her sons. They did a number of things including selling her farm and transferring the family home into their names. Their mother’s substantial estate diminished to a fraction of its size and, because she was not entitled to a Centrelink pension, she was left with limited means with which to pay for her ongoing medical needs.
The elderly woman’s granddaughter initiated an application in the WA State Administrative Tribunal to have the Public Trustee of WA appointed as her grandmother’s financial manager. The Tribunal made a finding that the sons “clearly exploited their mother whom they accepted lacked legal capacity”. This troubling finding occurs unfortunately all too often.
The case illustrates the importance of making appropriate Powers of Attorney in the event that mental capacity is lost, or impaired for a period of time, and financial or legal affairs need to be managed.
It is further vital to review existing Powers of Attorney on a regular basis. It you have reason to suspect that someone you have appointed may not act in your best interests or is no longer the most appropriate person, the appointment should be revoked and a replacement attorney appointed.
In the event of an attorney breaching their fiduciary duty but a principal no longer having capacity to revoke the appointment, any interested person can make an application to the Administrative Tribunal in their state for orders that the attorney be removed and replaced. This option is also available for people who have not made Powers of Attorney, like the elderly woman in the WA case. Those doing wrong can also be subject to criminal or civil penalties.
Our experienced Wills and Estates team is able to assist with any advice you might need, now or in the future.
Alison Mitchell
Senior Lawyer

In an age where advances in technology are becoming ever more intertwined with everyday life and cars can park themselves, from time to time we are asked whether Wills need to be written or can take another format such as a video?
It has long been the case that to make a valid Will, it must be in writing and must be signed in the presence of two or more witnesses. In addition, you must have mental capacity (often referred to as ‘testamentary’ capacity). This means you are not suffering from a delusion of the mind. You need to know and understand what a Will is- the nature and effect it has, approximately what you have to leave in your Will and any reasonable claims that may be made against your property, for example, a claim by someone who is financially dependent on you. So, does a video Will have a place in these circumstances?
A recent Queensland case considered exactly that issue and has reinforced the importance of having a properly drafted Will. The case of Radford v White [2018] QSC 306 involved Mr Schwer who did not make a written Will, but instead recorded a video before he left to collect a new motorcycle. He did this at the insistence of his girlfriend and stated in the video that he left everything to his girlfriend and nothing to his estranged wife. The video stated that Mr Schwer intended to “fill out the damn forms later”. Unfortunately, Mr Schwer crashed his new motorcycle after collecting it and suffered a significant head injury, subsequently dying some 14 months later. His estranged wife sought to challenge the video Will.
In this case the Court found in favour of Mr Schwer’s girlfriend. It based its decision on the following reasons: Mr Schwer intended the video to operate as his Will in the event of his death, which possibly may have resulted from riding his motorcycle, he intended to “fill out the damn forms” at some time in the future, with the intention being the video would act as his Will in the meantime and the delay in his filling out those forms was a result of his head injury and associated memory loss.
So, in this case while the Court upheld Mr Schwer’s intentions in the video, the difficult, uncertain and costly legal battle may have been avoided by ensuring he had a properly drafted Will in place. Video Wills are still considered to be fraught with risk and have a real danger of not being upheld. Having a properly drafted Will provides peace of mind that your loved ones will be protected and provided for in the way you intend. It also ensures that your beneficiaries are able to take advantage of potential tax saving and asset protection opportunities, which otherwise may not be available to them.
If you do not have a Will, or haven’t reviewed your Will in some time, we recommend you make an appointment with one of our experienced Wills & Estates lawyers who will be able to assist you.
Alison Mitchell
Senior Lawyer

The changes in the law applying to retail leases has been quite significant in recent times.
The term “retail premises” is defined in the Retail Leases Act 2003 (“the Act”) to include “premises that are used, or are to be used, wholly or predominantly for the sale or hire of goods by retail or the retail provision of services”.
Although the definition sounds fairly straightforward, changes in how businesses are conducted has changed significantly in the last decade. Not that long ago, people assumed that the word “premises” meant a place such as a shop (where customers could go to purchase goods), or an office (where, for example, clients could obtain accounting, legal or financial services). In other words, it was assumed that for retail activity to occur there had to be “direct personal interface” interaction between the consumer and the retailer. In this age of online sales of goods, however, formerly held views are changing.
Similarly, the understanding of what constitutes “the sale of services” has been reconsidered in a number of recent VCAT and Supreme Court decisions and has led to the sitting Member in one VCAT decision expressing the view that he could not “conceive of any sale of a service not being retail in nature”. Similar arguments have been presented in the Courts that the same wide interpretation should be applied to the sale of goods. Although, so far, attempts to widen what constitutes “sale of goods” have not gained the same traction as the arguments made in relation to the sale of services, that might change.
What does this mean for landlords and tenants? A lot! Premises that the parties previously thought were outside the operation of the Act might actually be caught and this will be so even if the lease expressly states to the contrary. Some consequences include landlords (1) who have been receiving land tax having to repay the amounts to the tenant; (2) being liable for repairs and expenses previously passed on to the tenant; and (3) being in breach of the Act for failing to provide a Disclosure Statement.
We recommend that landlords and tenants should have their leases reviewed by one of our experienced Property lawyers, to determine their rights and/or obligations.
Carmel Woodward
Accredited Specialist in Commercial Tenancy and Wills & Estates

A personal guarantee is an agreement that makes one or more people liable for another person’s debts. Common examples include:
– parents providing guarantees for their children;
– a husband/wife providing a guarantee for their spouse; or
– a director providing a personal guarantee for a company.
For instance, banks generally require a personal guarantee from the borrower or another person which can be called upon if the borrower defaults on making repayments under the loan agreement. The borrower as well as the guarantor may be both jointly and severally liable for the repayments. This means that the bank can pursue the guarantor for the debt owed to them (by the borrower) without pursuing the borrower first.
You should consider appropriate asset protection measures before entering into a personal guarantee. If you fail to do so and leave your assets unprotected from creditors, a personal guarantee may undo all of the good work you have done.
A typical example is a sole director/shareholder company wants to extend their finance for a business. The spouse of the director holds the family home in their sole name to avoid creditors of the business forcing the sale of the home to satisfy any unpaid debts of the company. The bank requires the director and director’s spouse to provide a personal guarantee for the performance of the company. If the director’s spouse provides the guarantee, then the family home is at risk of being sold by the bank despite the effort to keep the asset separate from the business.
If you require further explanation, please do not hesitate to contact one of our experienced Commercial lawyers.
Georgia Martin
Lawyer

Bridgette graduated from Deakin University in April 2003 with Bachelor Degrees in Law and Commerce and was admitted to practice in the Supreme Court of Victoria in November 2003. Bridgette has practiced in the area of Family Law in the Geelong region since 2003. Bridgette is a Law Institute of Victoria Accredited Specialist in Family […]

A recent High Court case of Thorne v Kennedy has again brought the profile of family law financial agreements into light and not necessarily for the better. This was a case about a couple who entered into two financial agreements, intending to set out what would happen if the marriage broke down. The Court determined […]

New laws have passed which may require your organisation to notify its clients and the Office of the Australian Information Commissioner (the Commissioner) if personal information held by it has been accessed without authority (for example by hacking) or has been disclosed without authority (for example published on the internet). These laws came into effect […]

It may come as a surprise to many people that superannuation and your related death benefits do not automatically form part of your estate and are therefore not automatically subject to the terms of your Will. A recent Federal Court decision in Stock (as Executor of the Will of Mandie, Deceased) v N.M. Superannuation Proprietary […]

When lending money to finance the purchase of property (real estate), a bank or lending institution will secure its position by registering a mortgage over the relevant property. The mortgage is registered on the Title to the property and the bank or lending institution retains control of the Title until the mortgage is formally discharged. […]

Many people will have heard of the significant changes which have occurred with respect to the way we are now required to conduct property transactions. If you’ve bought or sold property this year, chances are you may have encountered some of these changes. Specifically, from 1 October 2018, property transactions are now conducted via an […]

The Medical Treatment Planning and Decisions Act 2016 commenced in Victoria on 12 March 2018. The new Act specifies who has the legal authority to make medical treatment decisions if you are unable to make those decisions yourself. The Act allows you to appoint a Medical Treatment Decision Maker. This document enables you to choose […]

In Victoria, eligible pensioners are entitled to a one-off stamp duty concession or exemption when they purchase a new or established property valued up to $750,000 to occupy as their principal place of residence. To be eligible to obtain a stamp duty concession or exemption, pensioners must: * Hold a relevant concession card by the […]

Whyte Just & Moore are pleased to introduce one of our new up and coming lawyers- Georgia Martin. Georgia graduated from Deakin University with a double degree in Law and Arts (Psychology). Georgia was admitted to the Supreme Court of Victoria in June 2017 before joining WJM in September 2018. Prior to WJM Georgia worked […]

From time to time we are asked the question, what happens to your social media accounts when you die? With more and more of us having Facebook, Twitter, Instagram, Linkedin or other social media accounts, this question has become increasingly relevant in recent years. Facebook has recently changed its policy on the process it follows […]