Is Cash Flow the King of Conversation?

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Cash Flow. This important business metric is so much more than just a one-word-two-word conundrum (I prefer two myself)! So, what is it about these two words that make cash flow the King of Conversation? 

Think about a body and all its components. Arms, legs, fingers and toes; even the hair on the head. They all exist in perfect form because of one thing – blood. 

The blood running through the body helps in so many ways. It regulates the system so that the body can operate at peak performance. Blood is the supplier of oxygen and nutrients. It is the cleaner, the transporter and the delivery service for all the major organs. 

What has this got to do with business I hear you say? 

Well as the great business cash flow specialist Sean McGarry would say, “cash flow my friend is the ‘lifeblood’ of any business”.

You see Sean, a BDM extraordinaire from Scottish Pacific (ScotPac for short), has been discussing this very topic for years. He talks about it, analyses it and provides solutions for it every day of his life; he’s dedicated a career to cash flow solutions. Over many a business lunch, Sean has testified that without measuring and monitoring cash flow, a business simply cannot accurately assess its true financial condition. And he’s right…

A business can have the best marketing plan, solid service or an outstanding product but if there is no money in the bank, it’s in trouble! I don’t care what smart and savvy business analyst or accountant you may be, without cash flowing through the business (operationally), the business will very likely fail.

How Do You Keep the Cash Flowing?  

Inc.com gives an insight into cash flow and features an article on one very important aspect of cash flow; collecting invoices quickly (and three tips to getting paid). The article does feature something interesting and that is tip #2 – Go to a third party. 

Whilst I don’t prefer the use of colloquial language, technically the tip is correct when it reads …there are outfits that buy outstanding invoices. Outfits? I’m sure we can describe them better than this? Let me go back to Sean… 

Now you can’t describe Sean as an outfit; I know this for sure. A Business Developer, a Cash Flow Specialist, a friend to the SME owner but not an outfit. The organisation Sean works for is, by far, Australia’s leading Debtor Financier and an award-winning one at that. No less than thirty years of service to the Australian SME community, providing cash flow solutions daily. 

Products and Services

The list isn’t endless but ScotPac’s products and services are impressive:

  • Debtor Finance, Invoice Discounting, Factoring and Selective Invoice Finance (services the other mob would call buying outstanding invoices); 
  • Equipment Finance;
  • Trade Finance;
  • Import and Export Finance; and 
  • Tradeline. 

Take a look at ScotPac’s website for more details (you may read about Sean there too). 

Are there other ‘outfits’ out there offering the same (or similar) products – for sure. However, it’s a little bit like going back to your favourite restaurant because the quality of service is outstanding and the portions are generous; in other words, ScotPac simply does it better!

The Five Ways to Healthy Cash Flow

To prevent the risk of sounding just a little bit too much of a ScotPac fan (well managing SMEs is something close to my heart), let’s look at five other ways to keep healthy cash flow.

  1. Cash flow doesn’t equal profits – Knowing when your business will become profitable is one thing, not knowing when your invoices will get paid is another. Understand the difference between the two and start managing the collection of invoices (receivables) for a good start to positive cash flow;
  2. Maintain a ‘Buffer’ – Every business has cash shortages through its cycle and manoeuvring through these times is a critical component of running a healthy company. When there is a cash buffer in the bank, it is easier to focus on the business and not worrying about having funds to survive;
  3. Remind yourself that you are not alone – Operating a company can be a lonely place. Get accounting and tax advice, ensure your legal affairs are being looked after and talk to a Financier if you have concerns;
  4. Extend Payables (there is a difference to ‘delay’) – Agree with Suppliers to extend payment terms (say sixty-to-ninety days). You may pay a little more but if you equally give incentives to your customers for early payment and build this into the costing process, it’ll balance itself out; and
  5. Leverage off technology – Use tried and tested accounting software to assist with managing cash flow. The link will take you to Quickbooks but there are other providers that do a great job too.

Key Points – Cash Flow 

  • Manage the company like you manage your life – stay healthy, keep the blood pumping and always be prepared for the lows as well as the highs in business. Operating and managing a company is challenging – doesn’t matter what you sell. 
  • Surround yourself with like-minded people and always ask for help. It’s a short four-letter word but it’ll save you from carrying the load by yourself and keep your mental game in check too;
  • An oldie but one that remains true. Don’t spend what you don’t have if the investment doesn’t make sense. Far too many companies get into trouble by expanding too quickly or not knowing what’s going on (poor operational management);
  • Focus on the big picture and the detail will take care of itself. Manage your team but let your team do their job (i.e. don’t do what you pay someone else to do); and
  • Hold regular catchups in areas such as finance, sales & marketing, production and know what’s going on. Your business; your rules!

About Harbourside Legal Commercial Lawyers

We know a lot about business! The team has over 50 years of starting, building, financing and managing Small and Medium-Sized Companies. We have a panel of Lenders, Commercial and Immigration Legal Experts, Accountants and Tax Agents. Financiers, Real Estate Agents and even Investors.

We surround ourselves with expert advice – and you can too!

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DealCONNECT

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DealCONNECT – October 2019 Edition

DealCONNECT, the Platform created by Harbourside Legal Services, offers Business Sales and Investment Opportunities to both Australian and International Investors.

DealCONNECT provides a platform for International Investors seeking a pathway into Australia, via the Business Innovation and Investor visa streams (Subclass 188).

Why DealCONNECT?

As an Australian-based commercial and immigration Law Firm, we provide a full-service offering. Clients seeking investment into Australia can do so with complete confidence that the commercial and immigration aspects of their enquiry can be dealt with all in one place – Harbourside Legal Services. Our Lawyers are experts in their field.

Business Innovation and Investor Visa – Subclass 188

Business Innovation and Investor visas are complex in nature. A client needs expert immigration and commercial legal advice – a service-provider they can trust! Harbourside Legal has been providing commercial and immigration legal services for over 25-years, and have service partners across the globe. Contact us today

Need more information?

The DealCONNECT platform has a range of business sales and investment opportunities; and it’s FREE, to every client or interested party. Contact us today and obtain a copy. Harbourside Legal use only trusted parties to collaborate with opportunities; we act only as an Introducer and provider of commercial and immigration legal services.

Ask us about the Business Innovation and Investor Visa PowerPoint!

Harbourside Legal Commercial – Expert Legal Services. Contact today 02.9955.6692 or lee@hslegal.com.au

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Do you know when to update your Last Will and Testament?

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Your Last Will And Testament And When To Update It.

A Last Will and Testament (‘Will’) is an important document. Most people know what one is, and why it is useful for loved ones and those closest to you to know that you have one. A valid Will gives instructions for how assets will be dealt with after a person has passed. Wills generally provide for the appointment of a trusted executor/s and the leaving of gifts to chosen beneficiaries. They may also appoint guardians for minor children and give direction for specific funeral and burial arrangements.

When is it time to review your Last Will and Testament?

In truth, many people make a Last Will and Testament, store it safely and then forget about it. However, in many situations reviewing your Will is just as important as preparing it. This is more so when events occur, and your Will no longer reflects your wishes.

You should review your Last Will and Testament when your personal or financial circumstances change. In this regard, the following events might prompt you to do a review.

What is classified as Marriage?

The Succession Act 2006 (NSW) revokes a Last Will and Testament when the testator marries but does not revoke a gift to a person to whom the testator marries, nor the appointment of that person as executor. Marriage, however, may void other parts of the Will.

Wills made ‘in contemplation of marriage’ remain effective when the marriage (to the person nominated in the Will) occurs. This avoids statutory provisions that might otherwise void certain parts of the Will because of marriage.

If you have married since preparing your Last Will and Testament, then it may be time to review it, even if it was made in contemplation of marriage to your present spouse. If some time has passed since preparing it, certain other terms of the Will may no longer be desired.

What is classified as Separation?

The Succession Act 2016 (NSW) provides that gifts to a former spouse upon divorce are revoked as well as the appointment of a former spouse as executor. A Last Will and Testament should always be reviewed on separation from your spouse or de facto partner to take account of new circumstances. Bear in mind also that many partners are separated for some time before finalising their divorce.

The Birth of a child

The birth of a child will warrant revision of a Last Will and Testament. This ensures the child is sufficiently provided and cared for. The document can be drafted to distribute assets equally amongst children. Even those born after the Last Will and Testament has been made.

The Death or ill health of an executor

When preparing your Last Will and Testament, you may have appointed an executor/trustee of your estate who is no longer alive, ageing, mentally or physically unwell, or who has moved away. Consequently, in these circumstances, you might consider appointing a new executor. A Will can provide for a substitute executor if your appointed executor is unable or unwilling to act. There is no limit to the number of executors you may appoint. Your executors should be capable of managing your estate in accordance with your wishes, which is often carried out under the guidance of a solicitor.

The Death of a beneficiary

A gift to a beneficiary who dies before, or within 30 days of the testator, may fail unless a contrary intention is stated in the Will.

If the beneficiary was a child of the deceased, then the Succession Act 2006 (NSW) provides that the deceased child’s children will instead take the gift. Conversely, if the testator has no children and a substitute beneficiary is not nominated, the gift falls to the residuary estate. This can have unintended effects.

A Will that nominates a beneficiary who has passed on should be reviewed to ensure that it still has the desired effect.

The Disposal of a specific gift.

A specific gift is clearly identified and separate to other property of the estate; such as a prestige motor vehicle. If you sell or dispose of such an asset after you make your Last Will and Testament, then that gift will fail. The result is that the intended recipient of the gift may receive nothing at all or a much lesser share of the estate than what you intended. This may have a significant effect, particularly if the asset is of substantial value.

The Acquisition of interests in a company or partnership

Property owned by a company cannot generally be disposed of by Will. However, the shares in a company may be gifted. If you acquire an interest in a partnership you should consider what happens to that interest when you die. Most partnership agreements set out what happens when one partner dies and how that partner’s share of the partnership is distributed. New business interests should always prompt reviewing your Will.

Increased wealth, potential challenges to a Will, vulnerable beneficiaries

Your Last Will and Testament may incorporate a testamentary trust to provide for minors. It can also protect beneficiaries under legal incapacity, safeguard beneficiaries’ assets from creditors or family provision claims and provide certain income tax advantages.

If you would like these protective measures incorporated in your estate planning and the value of your assets warrant the administrative and accounting costs of a testamentary trust, then it is worthwhile discussing this option with your solicitor.

Summary

Life is unpredictable and change is inevitable. For better or worse life changes are likely to impact your estate planning. For good measure, you could diarise to review your Last Will and Testament each time your tax return is prepared. Remember that your superannuation, binding death benefit nominations, appointments of power of attorney and enduring guardians also form part of effective life and estate planning. These should also be regularly reviewed.

If you or someone you know wants more information or needs help or advice, please contact us on 02 9955 6692 or email info@hslegal.com.au.

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Incentives for first home buyers – NSW

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First Home Buyers Incentives – NSW

First home buyers in New South Wales may be eligible for stamp duty savings. They may also be eligible for assistance under the First Home Buyers Assistance Scheme and/or the First Home Owners Grant (New Homes).

Together, these New South Wales Government initiatives provide grants, exemptions and concessions to assist eligible first home buyers. They form part of the reforms delivered in the 2017 budget to improve housing affordability.

How do first home buyers benefit under the Schemes?

The First Home Buyers Assistance Scheme commenced on 1 July 2017 and provides concessions and exemptions from stamp duty for eligible first home buyers. Therefore, as a result, these incentives may make entering the property market more attainable for first-time buyers.

Consequently, the Scheme abolished stamp duty on all homes (new and existing) with a purchase price of up to $650,000 for eligible first home buyers. This represents considerable duty savings – around $24,740 on a $650,000 purchase.

Concessions are also available on homes priced between $650,000 and $800,000 for eligible buyers. Importantly, these concessions are calculated on a sliding scale and gradually decrease as the property value nears $800,000.

Furthermore, no duty is payable on vacant land to the value of $350,000 which is to be used to build the first home, with concessions on duty available for land valued between $350,000 and $450,000.

The First Home Owners Grant (New Homes) provides eligible first home buyers with a one-off grant of $10,000 if building a new home to the value of $750,000, or if purchasing a new property to the value of $600,000.

Am I eligible?

The stamp duty exemptions and grants apply to contracts entered on or after 1 July 2017.

In short, a first home purchase means a property which you (or another eligible purchaser) will occupy for a continuous period of six months, within twelve months of settlement. Exemptions from this requirement apply for certain Australian Defence Force personnel.

To qualify, purchasers must be natural persons (not purchasing through a company or trust) and at least 18 years of age. The purchaser and purchaser’s spouse or de facto partner must not have previously received a concession or exemption under a First Home Buyers Scheme or owned residential property in Australia unless the property was held solely as an executor or trustee.

At least one of the purchasers must be an Australian citizen or permanent resident at the time of the contract or transfer.

In addition, Applicants need to meet Proof of Identity requirements and complete the relevant declaration.

Further savings and changes under the reforms

The reforms also abolished insurance duty on lenders’ mortgage insurance which represents considerable savings, not just for first home buyers.

Mortgage insurance generally allows borrowers with less than 20% deposit to obtain a home loan. This is often the case for first home buyers. As a result, the insurance protects the lender if the borrower cannot repay the loan and the property needs to be sold. With the elimination of insurance duty, buyers who are required to take out mortgage insurance for a home valued at $800,000 are around $2,900 better off.

The reforms also introduced speedier development approval processes and plans to build compact ‘smarter’ homes in appropriate medium-density areas to improve housing supply and affordability, particularly for those first entering the market.

The State Government also budgeted for significant funding boosts for infrastructure and capital works to support increased demands by additional housing supplies.

Why were these incentives introduced?

The reforms were introduced to alleviate some of the competition between investors and first home buyers who are generally hard-pressed to buy property in a competitive market.

Above all, the reforms aim to even up the playing field a little more by increasing the incentives for first home buyers and hitting certain investors who buy residential property with higher taxes and duties.

For foreign investors, the surcharge on stamp duty doubled from 4% to 8% and land tax increased from 0.75% to 2%

Investors of off-the-plan properties, whether local or foreign, must now pay stamp duty within three months of exchanging contracts rather than deferring payment for fifteen months, as is generally the case for off-the-plan purchases.

Off-the-plan purchasers intending to use the property as their main residence are still entitled to defer payment of stamp duty for fifteen months from the exchange.

Conclusion

In conclusion, whether you are a first home buyer or investor, it is important to understand the impact of stamp duty and taxes on a potential property purchase.

Furthermore, your lawyer can assist in determining your eligibility for stamp duty concessions and grants and help you with the conveyancing process.

If you or someone you know wants more information or needs help or advice, please contact us on 02 9955 6692 or email admin@hslegal.com.au.

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Commercial Property – A Buyer’s Guide.

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A Guide To Buying A Commercial Property

Commercial property (such as a warehouse, office building or retail space) is more complicated to buy than a residential property. In short, a buyer should expect complex contract terms, detailed planning information and additional legal and commercial implications.

As such, this article will set out some of the key issues in relation to buying a commercial property.

Contract for sale

The Seller’s lawyer will prepare the contract. It will set out the terms and conditions for the sale of the property. Essential terms will include a description of the property and the purchase price. It will also include a list of any fixtures or fittings included in the sale and the settlement date.

Furthermore, the contract will include detailed special conditions which relate specifically to the property and the terms of sale. An experienced commercial lawyer will examine the special conditions and provide advice to the purchaser.

To clarify, the sale of each commercial property is a unique transaction and general terms in the contract will usually be negotiated and varied by the parties.

Name of the purchasing party

In commercial sales, it is important to ensure that the contract correctly identifies the entity buying the property. For example, there are a number of different entities which can purchase commercial property. These include individuals, individuals in partnership, companies, trustees of discretionary trusts, superannuation funds or a combination of entities.

So, if you are thinking about buying commercial property you should speak with your accountant or lawyer prior to the purchase. Know which buying entity best suits your tax or asset protection needs.

If the sale is completed and you decide that someone else should own the property (for example, a trustee of a trust) then this will require a transfer of the property and payment of additional stamp duty and capital gains tax.

Goods and services tax

The sale of commercial premises will often attract GST. Furthermore, GST is applicable if a seller is registered or required to be registered for GST and operates an “enterprise”. A buyer that is registered for GST, can claim the GST component in their next business activity statement, however, will need to pay the money upfront to the seller.

There are some exemptions to the application of GST. For example, a seller does not need to apply GST if the property is part of a “going concern”. This might apply if the property is a business premises or a tenanted building. A seller may also be able to use the margin scheme to work out the GST that applies to the sale of the property. This detail will be in the contract.

In conclusion, seek advice about GST when buying commercial property. It will affect the amount paid at settlement.

Existing leases

The contract of sale will disclose any leases. If you are buying premises subject to a lease, you should have the lease reviewed by an experienced lawyer. This is because the specific terms of the lease can have an impact on the commercial viability of the purchase. For example, a lease to a poor tenant that is paying under market rent and for a lengthy lease term is a vastly different commercial proposition to a lease to a quality tenant paying market rent.

Due diligence

When purchasing a commercial property, complete the necessary searches and enquiries (including legal, physical and technical). For instance, these include rates and water search, title search, company search (if the seller is a company), a search of the contaminated land register and land tax search.

Therefore, a buyer should consider inserting a clause in the contract that states the purchase of the property is subject to the buyer being satisfied with due diligence.

Conclusion

To conclude, purchasing a commercial property is an important investment decision with significant financial implications. Therefore, a good lawyer can help you negotiate the sale contract and ensure that your interests are protected during the purchasing process.

If you or someone you know wants more information or needs help or advice, please contact us on 02 9955 6692 or email admin@hslegal.com.au.

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NSW Commercial Landlord Hardship Grant: Application close 31 May 2022

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The NSW Government has announced that the commercial landlord hardship grant has been extended. Grants of up to $3,000 per month inclusive of GST, per property are available for eligible landlords who have provided rental waivers to affected tenants.

Eligibility

If you are a small commercial or retail landlord, you may be eligible for a grant under the commercial landlord hardship fund, if your main source of income is impacted due to providing rent relief to tenants financially impacted by COVID-19 restrictions.

If you own multiple properties, you will need to submit an application for each eligible property. Service NSW will review your application and contact you if additional information is required to support your application. Processing may take up to 20 business days.

Guidelines

To find the complete guidelines and dates included, please see https://www.service.nsw.gov.au/commercial-landlord-hardship-fund-guidelines

 

About Harbourside Legal 

The Harbourside Legal Services Group provides professional legal advice to Australian businesses. If you have a question relating to a legal matter, contact us today (+61 2 9955 6692 or admin@hslegal.com.au)

Our Key Areas of Service:

  • Commercial and Retail Leases
  • Debt Recovery
  • Employment Law
  • Australian and International Immigration
  • Wills and Estates
  • Property and Conveyancing

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  • Business Consultancy
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Employer or Contractor

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Employer or Contractor – do you know the difference?

It’s important for all businesses to have systems in place to determine whether workers should be classified as employees or independent contractors, as tax, super and other government obligations are different depending on whether the working arrangement is employment or contracting.

Employees generally have PAYG withholding, super and fringe benefits tax paid by the employer. Contractors generally look after their own tax obligations.

If you get it wrong and fail to meet your obligations, you risk having to pay penalties and charges.

What factors do you need to consider?

 There are a number of factors which need to be taken into account which help determine whether a worker could be classed as an employee or an independent contractor.

It is important to realise that no single factor can determine if a person is an independent contractor or an employee. To correctly determine whether a worker is an employee or contractor, you need to look at the whole working arrangement.

A worker isn’t automatically a contractor just because they have an ABN or specialist skills or you only need them during busy periods.

Courts will look at the whole relationship between the parties when determining the status of a person’s employment.

The Fair Work Ombudsman has produced a table of common indicators that may contribute to determining whether a person is an employee or independent contractor:

A simple way to help tell the difference

The Australian Taxation Office on its website uses the following simple descriptions:

  • Employees work in your business and are part of your business.
  • Contractors run their own business and provide services to your business.
  • Why is the distinction important?

Employment relationships are regulated by specific labour protection laws and various awards and workplace agreements. These laws generally provide a higher degree of protection to employees than the general commercial laws that regulate contractor relationships.

This protection includes minimum conditions and standards of employment for employees including minimum entitlements for leave, public holidays, notice of termination and redundancy pay.

Adopt good business processes

Business owners need to keep records to support any decision on whether a worker is an employee or contractor and the factors relied on to make that decision.

Most of the information needed to support the decision can be found in a service contract for independent contractors or an employment contract for employees, which should accurately reflect the actual conditions of the working arrangement.

All contracts should:

  • be in writing
  • specify whether it is a contract for services or an employment contract;
  • set out the period of engagement and the remuneration;
  • include dispute resolution provisions;
  • specify if/how the relationship can be terminated.

Penalties

It is illegal for an employer to misrepresent an employment relationship or a proposed employment arrangement as an independent contracting arrangement or, make a knowingly false statement to persuade or influence an employee to become an independent contractor.

Under the Fair Work Act inspectors can:

  • seek the imposition of penalties for contraventions of sham contracting arrangements; and
  • apply to the courts to grant an injunction or an interim injunction if an employer seeks (or threatens) to dismiss an employee for the purpose of engaging them as an independent contractor. The purpose of the injunction would be to prevent the dismissal from occurring, or otherwise remedy the effects. Courts can also make other orders to have the employee reinstated or compensated.
    If you need more information or if you need assistance or advice on how to proceed please call us on 02 9955 6692 or email lee@hslegal.com.au
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Starting a Business

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Starting a Business – An overview of Common Business Structures

There are 4 main types of business structures for doing business in Australia, each with their own advantages and disadvantages. A person can carry on business as a sole trader, partnership, trust and company.

The choice of business structure is an important decision to make at the start of a business venture, as the structure can impact on tax implications and reporting requirements during the lifetime of the business. When setting up a business structure, consideration should be given to factors such as how many people will be involved in the business, what the business will do, how much income is likely to be earned from the business and the intended growth of the business.

Sole Trader

A person can carry on a business on his or her own behalf, as a sole trader. A sole trader can trade under his or her own name or a registered business name. The income earned as a sole trader is taxed at the same rate as individual tax payers.

This is the simplest form of business structure, with lower establishment costs and with minimal legal and compliance requirements. The main disadvantage to this type of business structure is that a sole trader is personally liable for all obligations incurred in the course of the business.

Partnership

Two or more individuals can carry on business in partnership, where the income from the business is received jointly. Partnerships are relatively inexpensive to form and operate. Most partnerships are established by a partnership agreement which sets out the rights and obligations of the partners. A partnership itself is not taxable, rather each partner pays tax on their share of the net income of the partnership.

The downside to this type of business structure is that partners are severally and jointly liable for the obligations of the partnership. There is also potential for dispute and loss of trust between the partners.

Trust

Under a trust, a trustee owns the property or assets of the trust and carries on the business on behalf of the beneficiaries of the trust. A trustee can be an individual or a company. A formal Deed is required to set up a trust and there are annual tasks for a trustee to undertake. As such, it can be expensive and complicated to set up and administer a trust.

The advantages of a trust are that there is flexibility in income distribution and income can be streamed to low income tax beneficiaries to take advantage of their lower marginal tax rate. Furthermore, assets can be protected through a properly drafted Deed. The disadvantages are that trusts can be costly to set up and there are more compliance and legal requirements.

Company

A company is a separate legal entity capable of holding assets in its own name. The words “Pty Ltd” after a business name show that the business is a registered legal entity trading in its own right. A company is owned by shareholders and directors manage the company’s day to day business and affairs. The shareholders of a company receive any company profits in the form of dividends. Shareholders can limit their personal liability and are not generally liable for the company debts. Instead, the financial liability of the company is limited to the company assets.

Companies are governed by Corporations Law and there are a number of duties and obligations for company directors. Primarily, directors have an obligation to act in the best interests of the company. Establishment of a company and ongoing administrative and compliance costs associated with Corporations Law can be high. There is also a requirement to publicly disclose key information.

Conclusion

Each business will vary and no business owners’ circumstances will be the same. It is advisable to talk to an accountant or solicitor about the costs and risks of each business structure, to make sure that the business structure used is the right one for the business and its needs going forward.

If you or someone you know wants more information or needs help or advice, please contact us on 02 9955 6692 or email lee@hslegal.com.au

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Extension of the unfair contracts regime to small businesses

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The Federal Government has passed a bill extending the unfair contract term protections of the Competition and Consumer Act 2010 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) to the small business sector.

Under the new laws, a Court is able to declare that a term of a standard form small business contract is void if the term is unfair.

The laws are an extension of existing provisions which have been available to consumers since 1 July 2010.

The intent of the bill is to level the playing field and prevent “take it or leave it” standard form contracts, which are commonly one-sided, from including unfair terms. The amendments are based on the assumption that small businesses, like consumers, often lack the resources or skills to understand and negotiate contract terms and are vulnerable to the inclusion of unfair terms.

Agreements which could be caught by the provisions include retail leases, supply agreements, franchise agreements and finance contracts.

In this article, we look at what the new regime will mean for your business.

What transactions will be captured by the new regime?

The amendments will extend the unfair contract term protection laws to contracts that are defined as a “small business contract”. A small business contract is one where:

  • the contract is for the supply of goods, services or a sale or grant of an interest in land;
  • at the time at which the contract is entered into, at least one party to the contract is a business that employs fewer than 20 persons; and
  • the upfront price payable on the contract is no more than $300,000 (or $1 million if the duration of the contract is more than 12 months).

The protections only apply to standard form contracts. Although there is no express definition of a standard form contract, a standard form contract generally includes situations where:

  • one party has all or most of the bargaining power relating to the transaction;
  • one party prepared the contract before discussions between the parties;
  • one party was required to either accept or reject the contract as presented;
  • one party was not given the opportunity to negotiate; or
  • the terms of the contract are not specific to one party or the particular transaction.

A contract will be presumed to be a standard form contract unless a party proves otherwise.

The regime will not only apply to new small business contracts, but also pre-existing small business contracts which are renewed and to the terms of pre-existing contracts which are varied.

What is an unfair contract term?

A term of a contract is unfair if it:

  • would cause a significant imbalance in the parties’ rights and obligations arising under the contract;
  • is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and
  • would cause detriment (financial or otherwise) to a party if it were to be applied.

The legislation sets out some examples of unfair contract terms, including terms that:

  • allow one party to unilaterally vary, renew or terminate the contract;
  • penalise one party for a breach or termination of the contract;
  • allow one party to vary the upfront price under the contract without the right of the other party to terminate the contract; and
  • allow one party to unilaterally determine whether the contract has been breached.

Enforcement of the new provisions

If a party considers that a term of a small business contract is unfair, it can apply to the Federal Court seeking a declaration that the term is void and unenforceable. The remainder of the contract will bind the parties if it is capable of operating without the unfair term. Once a term is declared unfair, the party could also seek an injunction preventing the other party from relying on the unfair term.

There are no specific penalties or offences associated with a contract term being held to be “unfair”.

Applications to the Court can be made by a small business, the ACCC or by State regulators. The ACC has been provided with $1.4 million in funding to assist in the implementation of and compliance with the new legislation.

What can your business do going forward?

There is a 12 month phase in period for the new laws, which means that any business that uses a standard form contract when dealing with a small business will have 12 months to comply with the new regime.

Companies which deal with small businesses should review their standard terms of trade to ensure that they do not include unfair terms. This might include:

  • examining whether the company utilises standard form contracts;
  • assessing the extent to which standard form contracts are entered into with businesses which employ less than 20 people and which fall within the upfront price thresholds;
  • identifying existing contracts which might be renewed after the commencement of the new regime; and
  • reviewing any standard form contracts to identify terms which might be deemed “unfair” and considering whether they should be amended.

Conclusion

The new legislation will affect a large number of industries which rely on standard form contracts. Businesses will need to review their standard form contracts during the 12 month phase in period, to minimise the risk of key contractual terms being found unenforceable.

If you or someone you know wants more information or needs help or advice, please contact us on 02 9955 6692 or email admin@hslegal.com.au.

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Debt Recovery

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Debt Recovery post-COVID.

Released 01, February 2021

The effects of the pandemic on businesses across Australia are well documented. Many have suffered quite badly: for some unfortunate ones, it has meant permanent closure.  Households have also suffered and though we have all done the best we can to hold on and get through the economic decline, debt has continued to rise.

Reports back in 2020 quoted record debt piles for Australia. No doubt other countries are suffering the same fate and despite the good old Australian grit and our ‘never give up’ attitude, recovery is not yet in sight. Based on political and academic rhetoric, it is fair to assume it may take some time to stabilize.

In 2020, changes were made to the Corporations Act 2001 (Cth), as well as the Bankruptcy Act 1996 (Cth), to lessen the downward pressure of the economy. Essentially, limits were changed on the issuance of Statutory Demands to companies and the amount for which an individual could be made bankrupt.  The response time was also changed from 21 days to 6 months.

Though this was a legitimate move by the Government to assist, conversely, some have used the change to exploit and prolong their payment responsibilities. The outcome of the changes has meant many businesses and individuals are now owed money and for some, these are considerable amounts. The ability to recover these debts have been significantly delayed.

What now and when will this change?

In October 2020, the provisions made to the above Acts were reversed back to their prior state but what does this mean for clients?

As per legislation changes in January 2021, this means that a business can now be issued with a Statutory Demand for debts from $2,000.00 (not $20,000.00), and individuals can now be served with a Bankruptcy Notice for debts over $10,000.00 (and not $20,000.00). Moreover, a Debtor now has only 21-days to respond and no longer has the benefit of 6-months.

So, what are the options?  

Clients don’t often know what can be done to assist with debt recovery and collection. Put bluntly, outstanding and unpaid debt is like an incurable disease to a business. It eats away at every aspect of the company framework because debt recovery can be challenging, damaging to productivity, and lengthy. I have not met one business-owner in over 30 years of consultancy tell me debt recovery is simple but there are means and ways to make the process that little easier – in time and in cost.

Factors such as the amount of outstanding debt, age of debt, prior recovery efforts and overall circumstances of the situation, will all dictate the potential outcome of a successful debt recovery process. A client has the options to engage a Lawyer to:

  • Issue a Letter of Demand (from a Law Firm, this tells the Debtor you are more than serious when it comes to recovering payment and costs).
  • Issue a Creditors Statutory Demand.
  • Issue a Bankruptcy Notice.
  • Commence and manage court proceedings. 

Depending on the factors, a combination of the above may be required.

Commencing action is a positive move but a recent conversation with a Client reminded me of the troubling thought processes one goes through when considering debt recovery services; and it invariably contains questions regarding the cost. Well, the better question to ask is what is the cost of not acting?

How can Harbourside Legal help with your Debt Recovery?

The pandemic has created significant challenges. Some businesses and individuals will perhaps never see or experienced ‘normal’ again, but this need not be to the advantages of some who have used the pandemic, and the Government moratorium, to gain glory over others.  The truth is, for those who have taken advantage, their days are numbered, and payment is now required!

If you or your business is owed money, you can now have the assistance of a leading Debt Recovery Lawyer to help you collect your money; at a price that won’t break the bank. Using the services of a Lawyer will not only help you recover the debt but may also enable you to position your company stronger and ready for growth. The end of the pandemic will come, and you and your business must be stronger than ever…recovery is on the horizon!

A Lawyer can also be your commercial confidant; a business professional infused with legal knowledge and experience. Someone each-and-every business or individual should have in their repertoire of trusted external assistance. So, don’t just focus on debt recovery services (though the main topic). Consider a free consultation to talk about:

  • Employment contracts
  • Reviewing trading terms and conditions
  • Australian privacy requirements
  • Strategy
  • Acquisition and even exit plans.

Furthermore, consider a retention plan…they exist. Fix your fees, look at expected costs and use a Lawyer not just for debt recovery services, but someone who can assist almost every aspect of your business or debt recovery matter.

Contact Harbourside Legal Services today. Expert Commercial Lawyers for over 25-years.

Call +61 (0) 2 9955 6692 or email lee@hslegal.com.au

The contents of this article are considered reference only. It should not be considered legal advice of any kind and should not be relied upon. A consultation should always be had with an experienced Lawyer, before proceeding with any action.

Harbourside Legal Services Group is an award-winning law firm.

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Capital Gains Tax

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Limit the Liability and Get the Right Advice. 

20, October 2020 – Harbourside News

The financial year-end has been and gone (again). How was your tax advice?

When you consider the amount of time it takes to get all the information together, have preparation discussions with your accountant, and then wait for the dreaded call “you have a liability of…..”, is it fair that the wrong tax advice can result in unnecessary tax liability? The simple answer is no.

We all know that paying tax is necessary; it cannot be avoided plain and simple!  We pay tax for a myriad of reasons and Australia is just another country that imposes tax upon its nation (in 2019, the second-highest in the world).   So, what happens when you sell an asset, such as shares or real estate, and actually make a profit on the sale? Well, you may need to pay tax in the form of capital gains tax and this is calculated as part of your annual tax return. Hurrah…!

OK, perhaps not worth celebrating just yet.

The good news is you don’t pay capital gains tax when you sell your primary residence or when you make a loss on an investment (now you can celebrate) but if you own an investment property, which depending on the information source can vary between 12% – 20% of all Australians, then it’s worth considering how to limit your tax exposure when selling an asset. With respect to the changing profile of share investors, it may also be worthwhile considering the implications of capital gains tax.   

OK, tell me more…!

Four very simple and short words – Get the Right Advice!

Talk to accountants and independent valuers who know their stuff. Look at the different elements to calculating capital gains tax and how this affects your overall financial objectives. You may want to delay the sale of the asset till a time that works better with your personal life goals. Consider how long you have had the asset; is it worth holding on to that little bit longer (your accountant will explain why); and keep good records of all spending. The ATO considers capital gains (or losses) as part of your assessable income. Essentially, the more you earn, the more you may have to pay. 

As Commercial Lawyers we do not provide tax advice, but we know experts who do. If you have concerns, contact Harbourside today and we’ll introduce you to Tax Experts at all levels.

Harbourside Legal Commercial – great advice, brilliant Lawyers.
Call +61 (0) 2 9955 6692 | info@hslegal-commercial.com.au

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Residential, Commercial: Both or None – Leases

Posted by Lee S In Case Studies 0 comment

19, October 2020

‘Taking Advantage of Kindness‘.

Initial Enquiry

A client attending our city offices distressed by the circumstances she had found herself in. Over the previous 18 months, the client, an elderly landlady owning several inner west apartments, had befriended a builder after completing some work at her residential property. They entered a contractual arrangement for future services. The builder made a request to leave tools in a vacant apartment including building materials. This progressed to the builder also setting up an office in the apartment. When the client asked the builder to leave, the builder declined.

The Process

The first thing lawyers had to consider was to classify the legal proprietary relationship between the landlady and the builder. In law, a verbal lease could imply responsibility of the client, to the builder, under a commercial or residential property act. The builder was using a residential dwelling in a commercial capacity. To get the required legal precedent, Harbourside’s expert property lawyers referred to extensive case law and legislation.

Conclusion

After lawyers could not find any legal of equitable lease between the Parties, under instruction, Harbourside issued the builder with a legal letter demanding the immediate vacating of the premises. Initially, the builder refused. This decision quickly changing when a second letter resulted in the builder leaving the property promptly, and with no further action necessary. 

Click here to read more articles or learn more about the Team

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When Friends Become Litigants – Debt Recovery

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16, October 2020

‘Careful planning shortens the litigation process’

Initial Enquiry

A client came to Harbourside Legal Commercial Services seeking help. His prized possession–a vintage car–had originally cost our client a substantial amount of money for restoration. A mechanic used to assist with some modifications, parked the car resulting in damage. The client and mechanic were actual friends, and the mechanic requested the client to provide a quote to repair the damage to the vehicle. Upon being provided with the quote, the mechanic decided not to pay and attempted to avoid liability. Our client made a request for action.

The Process

In order not to inflame an already difficult situation, lawyers sent a ‘soft’ Letter of Demand asking the mechanic to honour his agreement and to pay for the expenses to repair and restore the vehicle. The mechanic declined and lawyers immediately began recovery proceedings in the Local Court (Small Claims Division).

The Outcome

Harbourside expert lawyers meticulously compiled evidence for court. Magistrates took just one sitting based on the submissions and took just one day to reach a positive outcome for the client.  The result left the client ecstatic and both the costs of his vehicle restoration, and our legal costs, being awarded in full.

Click here to read more articles or learn more about the expert Commercial Lawyers at Harbourside Legal.

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First Home Buyer Assistance Scheme. Are You Eligible?

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The new scheme from 01, August 2020 until 31, July 2021 will enable those buying a home for the first time to be exempt from paying transfer duty. This applies to:

  • New homes up to $800,000.00
  • Existing homes up to $650,000.00
  • Land valued up to $400,000.00

Buyers can also apply for a concessional transfer rate (variable). 

So, what is a new home?

Our friends at the NSW Revenue tell us that a new home is defined as:

  • A home not occupied before
  • A home not previously sold as a residence
  • A substantially renovated home
  • A replacement home (i.e. built to replace a demolished premises).

Eligibility for the Scheme.

For buyers to qualify and be eligible for the scheme, the following must apply:

  • to be eligible for the increased transfer (stamp) duty threshold, the contract must be dated on or after 1 August 2020 and on or before 31 July 2021
  • the buyer must be individual, not a company or trust
  • the buyer must be over 18
  • a first home buyer is just that; you, and your spouse/partner should never have owned or co-owned residential property in Australia before
  • you, and your spouse/partner must never have received an exemption or concession under this scheme
  • at least one of the buyers must be an Australian citizen or permanent resident.

Do You Have to Live in The Property?

Yes, you do. You, or one of the other first home buyers, must occupy the property within 12 months after buying the property and reside there for at least six continuous months (exemptions available for members of the Australian Defence Force).

Want to Know More About Your Options? Looking to Buy Your First home?  

Harbourside Legal Services Group – Expert Legal Services

Contact Today. 02 9955 6692 | lee@hslegal.com.au | www.hslegal-commercial.com.au

 

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Advanced Care Directives. Aged Care – Understanding Why Preparation Is Important.

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Advanced Care Directives

Making end-of-life plans isn’t necessarily the most positive conversation to have with someone but it can be a humbling process. Advanced Care Directives enable these discussions to be, perhaps, a little easier to have; especially when the person isn’t a family member.

Ageing is inevitable. Getting older is something that each and every one of us experiences in many aspects of our daily lives; family, friends, colleagues – even strangers sometimes! Each day we live a little bit more and we are on a journey of borrowed time. A reality we forget sometimes…until the end is nigh.

So, let’s look at Advanced Care Directives and understand a little more about what they are.

An Advanced Care Directive is a document that sets out a person’s end-of-life plan. We complete them in case of a catastrophic incident, illness or a debilitating condition such as a stroke. Furthermore, an Advanced care Directive is unique to an individual and applies in such circumstances or events whereby the person is no longer capable of expressing what they would like to happen, in the unfortunate event that their end-of-life is approaching.

An Advanced Care Directive enables a Guardian (individually or State-appointed), to know and respect an individual’s view on:

  • Life Support
  • Resuscitation
  • Medication
  • Preservation of Life; and
  • Funeral Arrangements

Why Is It Important To Have an Advanced Care Directive?

Sounds a bit flash and fancy doesn’t it…’ Advanced Care Directive’ but have a think about it for just a moment.

A loved one is displaying signs of age and you are unaware of their wishes in the event of a decline in health. You don’t really want to discuss it – and understandably so – given the deep, emotional attachment to the individual.

Alternatively, you’re a professional appointed as an Enduring Guardian (to add to your current appointment of Enduring Power of Attorney). You are unaware of your client’s personal situation and as such, you need to know your client’s wishes, should their health deteriorate.

It happens…you get a call. What do you do now?

To know more about this subject and to discuss it with someone who has experienced this very aspect of life, contact us today. We can help you alleviate the stress, anxiety and concern making you better prepared before and after the fact.

The expert lawyers at Harbourside Legal Services Pty Ltd provide Enduring Power of Attorney and Enduring Guardianship services to clients all over Australia. Contact Us Today for a Free Consultation.

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Business Law.

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Starting a business – Five things to consider.

Other than a strong will to succeed, starting a business takes courage and significant planning. So, what does this mean?

Here are some tips to get you thinking.

The first tip is a simple one…

Tip #1 – Get sound, professional advice from trusted Advisors

When I say trusted Advisors, I’m talking about legal, financial and accounting and taxation advisors. You can get advice on marketing and building websites and all the creative elements but if your idea/plan/model doesn’t stack-up in the numbers (or legally), then your business will most likely fail.

Tip #2 – Don’t sweat the small stuff.

The sooner you realise your professional strengths and weaknesses the better. So, be very clear about what you can and cannot do. Then, handsomely pay those who can do what you are unable to do and step-back, so they can get on with what needs to be done (and what you are paying them to do).

To help you identify the kind of help you may need to get your business started, refer back to Tip #1.  

A Moment of Thought…

The Small-to-Medium Sized (SME) business community makes up a colossal part of the Australian economy and business owners should be proud of this fact. However, a recent article published by mybusiness (www.mybusiness.com.au) exposed a shocking truth!  

The article highlights the truth that is often overlooked when operating and managing a business. It goes on to explain that many Australian Business Owners want to quit in the next three years. The reason being…the personal toll!

Tip #3 – Remember you are not alone.

Starting and operating a business can affect every aspect of your life. People will tell you it doesn’t have to be that way but let those who know speak louder. The truth is that operating a business does affect your life – both personally (mental, physical, emotional and spiritual) and professionally. So, wise up quickly and remember you are not alone.

For example, there are business communities, meet-up dates, mentors and hopefully a supporting partner to share the load. Above all, a strong and healthy mind and the management of mental health is vital to operating a successful business (it’s not just about the numbers).

Remember, most businesses don’t plan to fail. It’s the basic saying ‘they fail to plan’.  

Tip #4, – Plan, Plan, Plan.

There is a reason why every banker or investor will ask “do you have a business plan?”. In other words, they want to know whether you have done your homework and essential planning.

Planning is critical and having a strategy will enable you to can keep checking-in and that the business is, you got it, going-to-plan!

Business plan templates are scattered far and wide across the internet so there is no excuse! Most high-street banks have their own templates: free of charge. A business plan will get you thinking about how, what, where and most importantly WHY.

This takes me to Tip #5, and the last one for this article.

Tip #5 – Start With WHY!

If every decision we made in business started with this one word, I guarantee productivity would triple and redundant time would vanish.

Why?

When you start with your objective, the path becomes extremely clear to you and your peers. Why are we doing this? Why is there a market for this service? Why do people need my product? Why are we having this meeting? Why are you reading this article?

So, start with WHY and the vision becomes clear. For those who don’t know Simon Sinek and his concept of WHY (his first TED Talk smashed 40 million views), read more here.

In conclusion, it takes a lot to start and operate a business; no matter what business you own.

I know five tips don’t give you all the answers to starting a business but perhaps they may help a little; and that’s something every business owner needs most – consistent and reliable help from a committed and passionate team (was that another Tip?).

When it comes to your team, choose wisely and lead with gusto! Your vision and beliefs need to be embraced by all who support you; so don’t hold back your greatness! After all, you’re a business owner now and that means one thing. It all begins and ends with you!

For all your legal needs, contact Harbourside Legal Commercial today. Our expert commercial lawyers have been helping SMEs for over 25-years, and the initial consultation is free.

Start planning your future today, with sound legal advice.

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DEBT RECOVERY SERVICES FOR SMALL AND MEDIUM-SIZED BUSINESS (SMEs)

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Debt Recovery Lawyer – Do I Need One?

Debt Recovery can be a long and protracted exercise. So why not use an Expert Debt Recovery Lawyer to help you with the problem? This article explains more about the Debt Recovery process and seeks to flush-out the facts!  

Four Reasons Why You Wouldn’t Use a Debt Recovery Lawyer.

The idea of appointing a Lawyer to help recover a commercial debt may seem over-the-top. Some may also consider it to be the ‘last resort’. However, despite the fact that benefit will always outweigh opinion, there may still be reasons why you wouldn’t use the services of an expert.

So why wouldn’t you use a lawyer?

  1. A lack of experience. The client appoints a general practitioner and not an experienced Debt Recovery Lawyer;
  2. The notion that a law firm is an expensive option; only to add more costs to the problem (after all, isn’t it thought that lawyers tend to draw the process out to gain more fees?);
  3. The length of time the matter may take; and
  4. Lawyers get too much into the detail and miss the real problem (getting the debt paid).

Even though some of the above may be true (well at least #1 in any case), using an experienced Debt Recovery Lawyer makes total and utter sense. Furthermore, if we take a closer look at the issue surrounding non-payment of outstanding invoices, the layers of potential complexities can be many.

Here’s why…

When someone agrees to do business, they don’t intentionally believe they will receive your service or product for free. The intention is that payment will need to be made to settle the contract or agreement to supply.

A contract is clear when there has been an offer (i.e. a written quote) and acceptance (i.e. a signed written quote). In our experience (and this is from a combined 25-years of commercial legal services and an extensive asset-based lending career), a customer will fail to make a payment because of a handful of circumstances, but they don’t include:

  • Being unaware of the costs and terms of supply;
  • Having been on vacation and ‘just forgot’; or
  • The dog ate the chequebook!

Customers don’t pay because:

  • Inadequate credit control and debt recovery procedures (didn’t chase on time);
  • The customer has suffered a catastrophic business failure and the business is now in financial distress. Paying outstanding invoices is not on the priority list (in other words, your business suffers because of the customer’s lack of sound commercial management);
  • Poor communication;
  • Inadequate Terms of Trade; or
  • Poor cashflow, no cashflow or the customer is simply ‘trying it on’!

Debt recovery is an art. It is also a time-consuming and demanding task for any SME to manage. It takes a process, consistency and the right team to do the job. In a former life, I spent years assisting SMEs with debt management systems, financing invoices to assist with cashflow, advising on credit control policies but none of it beats good old ‘common-sense’.

KYC – Know Your Client

An oldie for sure but one that still makes sense today.

  • Don’t extend trade credit to a potential customer if it simply doesn’t ‘make sense’. Know who you are doing business with and get comfortable with the commercial decision;
  • Do your checks. Get references (trade and bank);
  • Take a deposit;
  • Offer a discount for early payment (don’t have your capital tied-up in overdue invoices);
  • Make sure your Terms of Trade are robust and adequate (so important);
  • Leverage off technology where you can; and
  • If you are going to offer credit terms, stick to them!

Should You Use A Debt Recovery Lawyer?

If you have an invoice outstanding beyond agreed terms of trade (worldwide this is as much as sixty per cent of all businesses), and your customer is not answering your calls, emails or demands – then the answer is YES!

Alternatively, you can try your luck and wait for the formation and approval of the Federal Governments new Payments Register but seriously, is this going to get your invoice paid?

To clarify, an experienced Debt Recovery Lawyer will act fast (Harbourside will issue a Letter of Demand within 24hrs from enquiry), and the cost is small in comparison to the outcome – try $99.00 plus GST and see how we do!

Better still, don’t let the situation get out of hand after all prevention is better than cure. Call today and get advice on your Terms of Trade, Supply Contracts, Agreements and any other commercial legal service you or your business may need.

In conclusion, for a relatively small fee, you can get on with what you do best and that’s growing your business. Harbourside Legal can do the rest. We can even work on a Retainer tailored just for your business needs!

Call today and speak with an Expert Debt Recovery Lawyer.

Email lee@hslegal.com.au or call +61 (0) 2 9955 6692.

Free Consultations are Available by Appointment Only.

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Prepare for your property purchase. Get market-ready

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Property Purchase – Looking for that dream home or perfect investment?

Many of our clients, particularly first-time home buyers, come to us in the early stages of their property purchase. Often, a client will be bewildered with the long string of sales negotiations and the conveyancing process in general.

Understandably, they do not know at which stage of the process the property they have searched so long for, is actually ‘theirs’, nor understand why additional investigations are recommended despite the many documents already attached to the contract.

Above all, purchasing a property is exciting but is usually also stressful. Having an expert property lawyer by your side can make a significant difference. Also, an understanding of the conveyancing process, before jumping into the market, can help alleviate some of the uncertainty.

Following are our top tips to help get you market-ready for your property purchase:

Importance of Checking your Finances

If you are borrowing for your property purchase, you should have your loan pre-approved before you start window shopping.

In truth, the market is scattered with numerous lenders and brokers, but you only need to be comfortable with one! This being said, whoever you choose, they should have sufficient knowledge to secure a loan package with a good interest rate, and one that meets your individual needs. Additionally, they should be able to advise you on the current stamp duty grants and concessions and assist you with the entire loan process from start to finish. In short, from lodging the application through to booking your matter in for settlements.

A common cause for people missing out on securing their property purchase is the time it takes to obtain finance approval. So, have everything ready to go. It is then a matter of getting the property valued and obtaining final approval.

In addition, don’t delay signing loan documents and providing information to your lender. This will also delay settlement of your property purchase, and may result in unnecessary inconvenience and the risk of penalty interest being charged under the contract.

Therefore, pre-approval of your loan is essential before your property search begins and will give the edge you need in a competitive market.

Understanding the conveyancing process

The timeframe between stepping through the door of your potential new home and settling your property purchase is short. A basic understanding of the conveyancing process is therefore important so you can make informed decisions at critical times.

There is no need to have a thorough knowledge of contract and property law – that’s the job of an expert Property Lawyer! However, understanding of the conveyancing process in general, and some of the key terms will help you feel at ease with your property transaction.

Following are some of the essentials:

The Contract

All contracts for the sale of land must be in writing and available for inspection before a property is listed. If you are interested in purchasing a property, you should be able to request a copy of the contract from the agent or seller.

Furthermore, the contract must contain certain documents relating to the property such as a title search, plan, copies of recorded interests, drainage diagram and planning certificate. Your lawyer will ensure that the contract has all prescribed attachments and will assist in explaining these to you. He or she will recommend any additional enquiries and investigations you should make and can arrange pest and building, or other reports on your behalf, before committing to the property purchase.  

The exchange

The exchange of contracts is the formal process of binding the seller and buyer to the transaction. The process varies slightly between jurisdictions as do the statutory rights for a purchaser to ‘cool-off’ (rescind or cancel) the contract within a specified period after exchange. To sum up, your lawyer will explain the relevant legislation in your jurisdiction and, if applicable the effect of waiving your cooling-off rights.

Remember, an exchanged contract is legally binding and therefore it is important that you are completely satisfied with the property and that finance has been formally approved. Equally important, and if necessary, is that your lawyer requests special provisions in the contract to allow you to rescind if certain terms are not met.

Failing to complete your purchase after exchanging contracts has serious consequences including forfeiture of the deposit and the risk of being sued by the seller for losses sustained, for failing to fulfil your obligations under the contract.

Mid-transaction

Your lawyer will liaise with your lender to ensure all pre-settlement requirements are met and work towards settlement of your property purchase.

Additional searches and investigations are carried out to obtain rate assessments for settlement adjustments and to ensure that the land is not subject to any adverse affectations which, in limited situations, may entitle you to rescind the contract. The law in this area is particularly complex and each property is unique. Your lawyer will be able to advise you on the depth of investigations to be made.

Settlement

Shortly prior to the settlement you should arrange a final inspection of the property to ensure that it is neat and tidy, with items removed and practically in the same condition as when it was first inspected.

Completion of purchase occurs when the legal and bank representatives meet to exchange the balance of the purchase price for the title deeds to the property. With the introduction of electronic conveyancing, settlements can now take place on-line.

After settlement, the council and water authorities are notified so that future rate notices are issued in your name. The title deed will be retained by your lender until the mortgage is repaid.

The Importance of Communication

Communication is key to a smooth property purchase transaction. The good thing about a conveyancing matter is that the parties’ objectives align i.e. the seller wants to sell and the buyer wants to buy. It’s that simple. The role of the parties’ lawyers is to facilitate the transaction. Additionally, to ensure their respective clients are well informed and their interests protected.

Lack of communication is an obstacle to a seamless transaction. So try to avoid this at all costs. Occasionally, a buyer and a seller will negotiate terms without the knowledge of the agent or lawyer. Consequently, this agreement is not always reflected in the contract and provides little scope to clarify misunderstandings or to ensure enforceability. Matters may then become unnecessarily protracted. If you have reached certain agreements with the seller, you should make sure you bring this to your lawyer’s attention so appropriate advice can be provided, and the terms included in the contract.

A good property lawyer will keep lines of communication open. This will ensure any misunderstandings are addressed quickly and that the parties can anticipate settlement on the due date, with minimal stress.

Conclusion

In summary, this article is a general guide to a standard residential conveyance. Your property purchase may be off-the-plan, a strata or community-title dwelling, or you may need to bid at an auction to secure your dream property. These matters will require additional considerations and an experienced property lawyer will be well-equipped to guide you through the process.

The conveyancing process moves quickly, and it is important that all parties are on the same page. Complications can and do arise but can generally be resolved by a fair and reasonable approach between the representatives for the buyer and seller.

If you or someone you know wants more information or needs help or advice, please contact us on 02 9955 6692 or email info@hslegal.com.au.

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