Does your employment contract measure up?

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Employment Contracts and What You Should Know!

An employment contract can be exceptionally detailed and should be prepared and reviewed by an expert lawyer. So, when entering into an employment contract, make sure you know what should be included. Similarly, if you are an employer and using an old contract ascertain when the last review date was; perhaps a review is long overdue! It is clear contracts should be meet the needs of those involved and in reality, both employer and employee should seek legal assistance first before offering or accepting an employment contract.

This article provides a starting point only and attempts to clarify some of the important information all parties should know.

What terms should always be in an Employment Contract?

Naturally, there are some introductory matters. For example, the identity of the parties needs to be set out as well as the duration of the contract (for example if it is for a fixed-term).

The employment contract then needs to specify the terms.

Before the terms are measured, the application of any statutory provisions or award or collective agreement must be considered. Generally speaking, employers and employees cannot contract out of awards or collective agreements.

The following are critical to mention, and the entitlements need to be specified, including:

  • The remuneration;
  • The frequency of remuneration reviews;
  • The period of the employment contract (if fixed term);
  • The basis of remuneration adjustment and performance management/appraisal;
  • Termination conditions;
  • Any professional indemnity;
  • Specific employment conditions including
    • hours of work;
    • annual leave;
    • annual leave loading;
    • public holidays;
    • long service leave;
    • superannuation;
    • reimbursement of expenses;
    • sick leave or carer’s leave;
    • parental leave; and
    • other leave.

Additionally, depending on the nature of the employment and industry it may be important to also include:

  • Intellectual property;
  • Restrictive covenants;
  • Professional development and training; and
  • The location of employment.

Further, the Statement of duties can be attached to the employment contract. For this attachment to become part of the terms of the contract, it should be expressly incorporated into the contract by a statement. As a result, it makes it part of the contract in the body of the contract itself or as an annexure.

The Importance of Workplace policies

Workplace policies may be incorporated into the employment contract because of the nature of their content, some will not, and it is hard to know what matters a court will find are incorporated. If an employer wants to incorporate policy into the contract, they can expressly do so by reference in the contract.

The difference between employees and contractors

There is often ambiguity in a workers’ status, as to whether they are a true employee of an independent contractor. Employment law differs from other law, such as tax law, on these questions.

There are also significant legal consequences of incorrectly assuming an employee is a contractor or vice versa. In other words, the true nature of the working relationship should be considered at the time of drafting an employment contract or a contract for services.

The importance of Superannuation

The employer is responsible to ensure that appropriate superannuation contributions are paid into the employee’s nominated superannuation fund. Generally, a contractor will be responsible for their own superannuation contributions. However, when offering employment, you should clearly state if that offer includes superannuation.

What are your Implied entitlements?

To clarify, some entitlements and obligations that exist in the employment relationship are implied. This to say, they are not written down or stated, but they still exist.

The implied terms include:

  • An employee must exercise reasonable skill and care in their performance of duties;
  • A general duty exists for an employee to obey all lawful and reasonable directions by their employer;
  • There must be fidelity and confidentiality within the employer/employee relationship; and
  • If there is no provision for termination within the contract, then “reasonable notice” for termination must occur unless in circumstances of “serious misconduct”.

Conclusion

When negotiating an employment contract, it is essential for both employers and employees that the contractual arrangements should be specific to the individual, and the terms say what you want them to mean. Therefore, Parties entering into these arrangements are wise to seek legal assistance beforehand to ensure they are right.

In conclusion, if you want to know more or if you run a business and would like your draft employment contracts reviewed, please call us on 02 9955 6692 or email info@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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Business Structure: Company

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Business Structure – Which One To Use and Why.

When commencing a new venture, consider the most appropriate type of business structure to use. Different business structures have different benefits and disadvantages. This article looks at a company business structure – how to set one up and the pros and cons.

Key Features of this Business Structure

A company is a separate legal entity and a particular business structure capable of holding assets in its own name and liable for its own obligations. Furthermore, shareholders own a company and liability is limited to the amount of their shareholding guarantee. This means that shareholders can limit their personal liability and are not generally liable for the debts of the company.

To clarify, it is the Directors that manage the day to day business affairs of the company. In other words, there are a number of duties and obligations for company directors including an obligation that a director must act in the best interests of the company.

In Australia, the most common forms of company are:

  • Firstly, a Private company (or a proprietary limited company) is a company that which does not sell its shares to the public and cannot raise money from the general public through a share issue.
  • Secondly, a Public company is a company whose shares are owned by the public at large, with the company’s shares usually listed for trade on a stock exchange.

Australian Securities Investment Commission (ASIC) is the regulatory body. Corporations Law is the applicable legislation.

How to Set up a Company

When ASIC registers a company, the company will be given an Australian Company Number (ACN). Furthermore, an application must nominate a principal place of business and registered office for the company.

Prior to lodging an application for registration, give consideration to the following:

  • understand the legal requirements of this business structure
  • the proposed company name. Check to confirm the availability of the proposed name.
  • what rules will apply to govern the company? This can generally be the replaceable rules from the Corporations Act (which means that the company does not require its own written constitution), a constitution or a combination of the two.
  • who will be the shareholders and directors of the company?

Additionally, a company will need a Tax File Number (TFN) and an Australian Business Number (ABN). Obtain the numbers from the Australian Taxation Office (ATO) and the Australian Business Register (ABR).

Similarly, the ATO requires that a company must be registered for GST if its annual turnover is $75,000 or more.

Business Structure – Pros and Cons

The advantages of forming a company business structure include:

  • limited liability for shareholders
  • easier to raise finance for expansion
  • ownership is easily transferred
  • taxation rates can be favourable

The disadvantages of this business structure include:

  • expensive to form, maintain and wind up
  • reporting requirements can be complex
  • must publicly disclose key information
  • owners cannot offset losses against other income

Conclusion

To conclude, a company is a suitable business structure for parties that are unrelated and want limited liability.

Remember however that establishing a company will incur costs for ongoing administrative and compliance. An accountant or lawyer can help you understand the cost and risks of a company and explain whether a company structure would be suitable for your business 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 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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Buying and selling a property at the same time

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A simultaneous settlement can be demanding – here’s what to know!

Buying or selling property is widely accepted as one of life’s major stress factors. When you buy and sell a property at the same time, and try to complete both transactions together, then this can add considerably to the stress levels. An event like this is known as a simultaneous settlement and is often encountered in the conveyancing process.

Why settle simultaneously if it is so stressful?

Most people are not in a financial position to buy a new property without first selling an existing property, and often rely on the funds from their sale before completing their purchase. Simultaneous settlements are ideal when the family home is sold (whether to upsize, downsize or relocate), and an alternate home is being purchased. If both transactions can settle at the same time, there are financial and practical benefits:

  • you only need to move once, saving time, removalist and/or storage costs;
  • you won’t need alternate accommodation, saving on rental costs or avoiding the inconvenience of staying with family or friends until a new home is found;
  • the loan for your existing home can be refinanced and replaced with a loan for your new property, in the same transaction;
  • arrangements can be made to disconnect and reconnect services from your existing home to your new home, ideally, in one transaction.
What happens at a simultaneous settlement?

The sale of your existing property is completed at the same time as the purchase of your new property. These transactions are interdependent so need to be meticulously planned and coordinated – if there are delays or problems with one transaction then the other is also affected.

The circumstances of the other parties (i.e. the respective seller and buyer of your properties) are also relevant. If they are in a similar position, then their issues also become yours and a domino effect occurs.

On completion, funds from the sale of your existing property are collected and, if a refinance is involved, applied towards your purchase. The mortgage over your existing property is released by your lender and a mortgage taken over the new property to secure the new loan. Come settlement day, the transaction is usually orchestrated in a matter of minutes however the plan has been evolving for the past weeks or months.

Meanwhile, you have arranged for the disconnection and reconnection of services such as electricity and internet and await nervously with a moving truck full of furniture and a lifetime of memories, for the ‘green light’ from your lawyer.

The legal considerations when buying and selling a property

A simultaneous settlement has practical and financial benefits however it also has legal implications. If you choose to have your sale and purchase settle at the same time, your lawyer will advise you of the legal issues and assist in bringing the transaction together.

Once contracts are exchanged, the parties are legally committed to the transaction and face significant implications if they fail to proceed. For a purchaser, this generally means, at a minimum, forfeiting 10% of the property’s purchase price if the contract cannot be completed. Consequently, a purchaser should not commit to buying a property without assurance that the sale of an existing property is a ‘done deal’.

To protect your interests, a simultaneous settlement requires a simultaneous exchange of contracts with both providing for the same completion date. This is critical to avoid the risk of losing your deposit. Your lawyer can make the necessary arrangements and negotiate the appropriate conditions in the contract.

Alternatively, your lawyer may be able to negotiate the inclusion of a ‘subject to sale’ clause in a purchase contract if you haven’t sold your property yet. However, in most cases, a vendor will not accept this, particularly in a competitive market where there are other buyers ready, willing and able to enter an unconditional contract.

What are the options?
  • Selling first and buying later may be a safer option for those on lower incomes or with less equity in their existing property. The downside of this is that you will need to arrange accommodation while looking for your new home. The pros are that the funds from your sale can pay out your mortgage with the balance going towards your purchase. If you have pre-approved finance from your lender, you may also be in a more advantageous bargaining position in a competitive market.

If your buyer is not in a hurry to move into your existing home, you may even be able to negotiate a leaseback of your property until you find a suitable home.

If you need to move in a hurry for example, relocating for a new job, and you can’t sell quickly, renting your existing property on a short lease may also be an option.

  • Buying first and selling later can be risky. Unless you are a cash buyer and/or own your existing property outright, you will need to finance both properties. For most people, this will require looking after two mortgages and/or obtaining a bridging loan which may not be an option for many people. It will, however, enable you to snap up the property you want when it is available and then reduce your financial commitments once your existing property is sold. It can also provide an opportunity to utilise market fluctuations to your advantage. If, however, holding two loans becomes increasingly difficult, you may need to sell quickly accepting an offer below your expectations.
Conclusion

Your personal circumstances and the market should be considered when buying and selling a property and choosing the option that is right for you. Current market and property demand generally dictate how quickly you can sell and find an alternate suitable property. Financial circumstances also influence available options.

There is never a one-fit solution when buying and selling a property at the same time. The most important thing, however, is to ensure that whichever option you choose, you understand the legal and financial implications and are guided throughout the process. A simultaneous settlement requires careful planning, good communication and negotiation skills and, importantly, a contingency plan. If one transaction falls over, then so does the other!

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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Appointing an Enduring Guardian

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Enduring Guardian Appointment

When making estate plans, many people under-estimate the importance of appointing an enduring guardian.

An Enduring Guardian can make lifestyle, health and medical decisions on your behalf. Especially if you lack the capacity to make those decisions yourself. An Enduring Guardian acts as a substitute decision-maker and can consent to your future medical and dental treatment, and accommodation arrangements. The appointment also authorises health care professionals to share your information with your guardian.

None of us can predict the future. However, by appointing an enduring guardian, you can ensure that your wishes are legally documented if you can no longer express them. Appointing a guardian can also minimise conflict between family members about your future health care by stipulating in advance the types of treatment you would like.

Appointing a guardian

An appointment of an enduring guardian is made under the Guardianship Act 1987 (NSW). The appointment must be in a form and witnessed in the manner, prescribed by the Act. Your lawyer can draft the appointment and will explain its legal effect on you and your guardian.

An Enduring Guardian must be at least 18 years and must not be a person who is professionally or administratively involved. Meaning, must not provide medical services, accommodation, or other support services to the person making the appointment. The guardian must also not be the spouse, parent or sibling of a person involved in providing such services.

More than one guardian may be appointed.

It is common for spouses or partners to appoint each other and/or their adult children as guardians; the choice is ultimately yours! Remember that your guardian may need to make confronting decisions in challenging and emotional circumstances. The person you appoint will need to understand your values, morals and wishes.

When choosing an Enduring Guardian, you should consider:

  • the age, health and stability of your proposed guardian;
  • whether your proposed guardian shares similar values and/or will be able to make decisions in accordance with your wishes and requirements;
  • the geographic location of your guardian – it may not be practical to appoint somebody residing in another State, particularly if urgent health care decisions need to be made.

If you appoint more than one guardians, you may appoint them jointly or jointly and severally. Appointing guardians jointly means that both, or all guardians, must agree on the decisions made on your behalf. By appointing your guardians severally, you authorise each of them to make decisions separately. If appointing more than one guardian, you will need to consider how well they are likely to work together if you are incapacitated and any potential for conflict.

Your appointment can include specific directions about your future treatment for example that you continue receiving services from a certain health care provider. You may also include the type of treatment you are willing to accept or refuse, for example, you can state that if you are seriously ill with no chance of recovery, you do not wish to be subjected to treatment unlikely to meaningfully prolong your life. You may not instruct your guardian to exercise any illegal functions, such as euthanasia.

The person making the appointment must have the mental capacity to do so. Where a person lacks capacity and there is no pre-existing appointment, the Act provides for a ‘person responsible’ to authorise medical and dental treatment. A person responsible includes a parent if the person is a child.

Where there is no person able to act as the ‘person responsible’ an application for a guardianship order may be made to the New South Wales Civil and Administrative Tribunal.

The role of the guardian

It is important to understand the responsibilities you are handing over to an Enduring Guardian and that the nature of the appointment is undrstood.

An Enduring Guardian must give paramount consideration to the welfare and interests of the appointor or (in the case of a guardianship order, a disabled person). When exercising their functions, they must follow the general principles set out in the Act which include:

  • ensuring that the person’s freedom of decision-making and action is restricted as little as possible;
  • encouraging, wherever possible, the person to live a normal life in the community and to be self-reliant in matters concerning their personal, domestic and financial affairs;
  • taking into consideration the views of the person when exercising their functions;
  • preserving family relationships and cultural and linguistic environments;
  • protecting the person from neglect, abuse and exploitation.
I’ve appointed an enduring guardian – what next?

Many people appoint a guardian without talking through their wishes with that person. An open and frank discussion about your values, morals and future treatment concerns are important. This ensures your wishes are upheld if you are incapacitated. You need to be able to trust that the person or persons you appoint will take your views into account when making decisions on your behalf.

Whilst the appointment of a guardian is a private arrangement, it may be beneficial to alert other family members or friends of the appointment as well as your health care provider. Your original document should be retained in a safe place and a copy provided to your guardian or instructions are given on how to access the original.

Conclusion

If you are incapacitated due to an accident or illness, you may not be able to rely on your usual network of family and friends to make decisions about your treatment that reflect your values and morals.

An appointment of enduring guardian forms an integral part of your overall estate plan – it complements your Will and Power of Attorney which authorises an appointed person to deal with your financial matters in specified circumstances. Together these documents provide direction in the event of the unforeseen and/or inevitable and make the process for you and those dealing with misfortune and crisis a little less uncertain.

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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Retail Leases – An Overview

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An Overview of Retail Leases

Commercial or Retail leases form part of many business transactions. When leasing commercial property, it is important for both landlords and tenants to understand the relationship they are entering and the rights and obligations they each have. A commercial lease governs such matters. Some commercial leases are classified as ‘retail’ and, in New South Wales, are governed by the Retail Leases Act 1994 (NSW) (the ‘Act’). A retail lease is essentially a commercial lease regulated by the Act.

The Retail Leases Amendment (Review) Act 2017 which commenced on 1 July 2017 aims to enhance transparency during the leasing process and streamline some of the key features of retail leasing. This article provides a brief overview of retail leasing and explains some of the important changes impacting retail leases.

Landlord’s key requirements for retail leasing

A landlord must provide all information relevant to a prospective tenant’s decision about whether to enter or renew a retail lease. For a new retail lease, the following documents must be available before the landlord or agent offers to lease retail premises:

  • a draft copy of the proposed lease;
  • a disclosure statement;
  • the NSW Retail Tenant’s Guide, which outlines the rights and obligations of retail tenants and landlords and explains some commercial matters.

These requirements are widely referred to as a landlord’s disclosure obligations.

Disclosure statement

The disclosure statement outlines important information about the lease and includes details about:

  • the premises to be leased, amenities, shared facilities and any other items included such as air conditioning or other services;
  • the term of the lease and renewal options;
  • the rent payable, rent reviews and the method for calculating reviews;
  • the tenant’s estimated liability for itemised outgoings;
  • tenant’s fit-out requirements;
  • relocation or demolition clauses and details of any future works planned;
  • specific information for shopping centre leases such as trading hours and details of other retail shops, leases, etc.

The lessor disclosure statement must be provided to a tenant at least seven days before the lease commences.

Key changes introduced
Excluded premises

The characterisation of a property as a ‘retail premises’ is usually obvious by the nature of the property itself and its location. Retail premises largely include shops and outlets situated in a retail centre and/or utilised for selling, hiring or providing goods and services to the public.

Certain premises, although located in a retail shopping complex, are now excluded from the Act. These include premises in which ATMs, vending machines, storage lockers and digital display screens are situated. Market stalls of a temporary nature are also excluded from the Act.

No minimum lease terms

Retail leases previously needed to be for a term of at least five years unless the tenant obtained a solicitor-verified section 16(3) certificate waiving that requirement. Traditionally, this was to allow tenants the opportunity to develop longevity and goodwill in a business. The requirement, however, was frequently contracted out of by agreement between the parties and a retail lease no longer has a minimum term requirement.

Registration requirements

Leases for a term exceeding three years must be lodged for registration within three months after being signed by the tenant and returned to the landlord. The landlord must also provide the tenant with a copy of the fully-signed lease within three months of having received it from the tenant.

The Act provides some leeway for delays due to the need for a landlord to obtain mortgagee consent to the lease and for delays beyond the control of the landlord.

Compensation for termination within six months

Failure by the landlord to issue a lessor disclosure statement within seven days prior to the lease being entered or for providing a materially false, misleading or incomplete disclosure statement enables a tenant to terminate the lease within the first six months.

The Act now provides that tenants who genuinely terminate a lease in such circumstances have the additional right to claim compensation for expenses reasonably outlaid in entering the lease. This includes recovery of fit-out costs.

Disclosure statements and outgoings

Disclosure statements play an important role in the retail leasing process and must set out the tenant’s liability for outgoings and estimate the cost of those items.

New provisions preclude a landlord from requiring a tenant to pay for an outgoing that has not been included in a disclosure statement. Further, landlords are restricted to claiming only the estimated amount of an outgoing noted in a disclosure statement, in circumstances where the actual cost exceeds the estimated cost and there are no reasonable grounds for the estimate provided. The restriction does not apply to taxes, rates or levies imposed under legislation and not anticipated or effective prior to issuing the disclosure statement.

The definition of outgoings now specifically includes fees charged by the landlord in connection with the management, operation, maintenance or repair of the retail shop building or land.

Disclosure statements may be amended by agreement between the parties after the lease has commenced – any changes will be effective as determined in the agreement. Additionally, the New South Wales Civil and Administrative Tribunal (NCAT) may order the rectification of a disclosure statement or deem that a disclosure statement has been provided in certain circumstances. The jurisdictional limit for resolving retail lease disputes at NCAT has increased from $400,000 to $750,000.

Turnover rent

Online transactions are clearly excluded from calculating percentage turnover rent, except when goods relating to the transaction are delivered to the leased premises for collection or where the online transaction occurs whilst the customer is on the premises. The landlord is prohibited from requesting information about online transactions unless they fall into the exempted categories noted above.

Demolition clauses

A demolition clause allows the landlord to terminate a lease if the building in which the leased premises is situated is to be demolished. These provisions have been unclear in the past so the definition of demolition has been amended to clarify that ‘repair, renovation and reconstruction’ works may invoke a demolition clause.

This means that only part of a building needs to be the subject of demolition work for a landlord to rely on a demolition clause in the lease.

Conclusion

Reforms to the Retail Leases Act 1994 have introduced changes to the retail leasing process. Leasing documents and procedures should be carefully reviewed to ensure compliance with the Act and parties should be conversant with their respective rights and obligations.

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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Commercial Lease – Responsibility for Repairs and Maintenance

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Responsibility for Repairs and Maintenance

 

What is a Commercial Lease?

A commercial lease is a legally binding contract. It gives a tenant certain rights over a property for a set period of time, subject to the terms and conditions set out in the lease. A commercial lease is used when leasing property used primarily for business.

You should never sign a commercial lease without understanding all of its terms and conditions. If you don’t understand what you are agreeing to, you could experience serious financial and legal problems.

General terms

It is rare to find a commercial lease that is prepared by the tenant. It is almost always the landlord that prepares the lease when commercial premises are rented, and the terms of the lease will generally be in the landlord’s favour. Once the lease is signed, the tenant is required to comply with the terms and conditions of the lease during their occupation of the landlord’s premises.

The lease sets out the obligations of the landlord and the tenant and the rights of each during the term of the lease, and any options for lease that are exercised after the initial term of the lease has expired.

A commercial lease will usually have longer terms than residential leases. This gives the tenant, usually a business, longer security of tenure and allows them to transfer the lease if they sell the business before the lease has expired. This can be appealing to a buyer of that business to already have the lease in place.

Repairs & maintenance of the premises

The legal obligations of a landlord and tenant regarding maintenance and repair of the premises are set out in the lease.

In most commercial leases the tenant is responsible for the rented premises including walls, floors, fixtures and inclusions, and the landlord requires the tenant to repair and maintain the premises during the lease term.

This will usually not include “fair wear and tear” on the premises, repairs to structural parts of the building or other expenditure of a capital nature (air conditioning, walls and the landlord’s plant and equipment).

The landlord is generally responsible for repairing and maintaining major structural aspects of the building, including the roof and the building systems contained in it (such as common areas and lifts).

Items such as air-conditioning, cool-rooms, heating fixtures, and wall partitioning should be carefully defined in the lease to avoid costs and disagreements. Commercial leases are often silent on items such as air-conditioning and cool-rooms, which are capital items but used by a tenant in their day-to-day business.

Fixtures such as refrigeration and plant and equipment should be repaired by the landlord, but a tenant should ensure that this is written into the lease as it is not an automatic obligation.

Avoiding disputes – common scenarios

The majority of disputes that arise between landlords and tenants, and the issue of who is responsible for repairing or maintaining the premises, arise out of interpreting the terms of the lease. In particular, what is meant by “maintenance” and “repair” and sometimes what is “structural”.

Structural repairs include repairs to the building support system and foundations, flooring and ceiling structures, column support, walls and roof. It does not include partition walls, internal stairways, decorative features (such as carpeting), and sometimes plumbing depending on the building.

A “repair” is generally defined as an act necessary to fix something that has been damaged. This can be either accidentally or as a result of continued use. If a tenant or a member of their staff, or even a customer damages part of the premises, the tenant is always responsible for the repairs needed to reinstate the item. It is when an item, say a latch on a cool-room door that is used frequently, wears out and requires repair that the landlord and tenant may not agree about who should fix it.

The landlord may say that the latch was damaged due to the tenant’s lack of care or proper or regular maintenance and the tenant may say that it was faulty or had reached the end of its useful life. Disputes may arise and cost the parties time and money, so it is best to ensure that the lease is specific in the areas where the potential for disagreement exists.

“Maintenance” is generally considered to be the taking of some action to delay wear and tear or deterioration or breakage of an item. For example, cleaning and servicing of plant and equipment or proper disposal of waste and garbage. The common exception from “wear and tear” is where non-structural items such as carpeting have deteriorated over time and should be replaced by the landlord.

If a lease specifies that the tenant clears the drains, for example, and there is a plumbing issue the landlord may say that the reason the drains failed was that the tenant did not do proper maintenance. The tenant may say that the plumbing is old and needs updating and then a dispute exists about who is to fix the costly plumbing problem.

Both parties can lessen the likelihood of dispute by undertaking a full inspection report of the premises and both signing off on the report. This will establish and document what condition the premises were in prior to entry of the tenant and should be carried out and updated yearly.

A commercial lease should contain clear obligations and well-defined standards for the repair and maintenance of the premises under the lease, to reduce the risk of dispute and misunderstanding between the parties.

The law is not always clear in this area particularly with regards to repairs and maintenance obligations. Even where legislation may say that a repair is the landlord’s obligation, the lease (written by the landlord), can change this and make the tenant responsible. Each party should, therefore, ensure that they receive their own legal advice to ensure their best interests are protected in the lease.

If you or someone you know wants more information or needs help or advice, please contact Harbourside Legal Commercial Services on 02 9955 6692 or email info@hslegal-commercial.com.au

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Enduring Powers of Attorney explained

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Enduring Powers of Attorney explained

 

A lot of people have heard of a Power of Attorney however, most do not fully appreciate the extent of its power, the benefits it delivers, or the types of Powers of Attorney.

A Power of Attorney is a useful legal document used to allow someone to handle their affairs in a variety of circumstances. It is often used if they are planning to go overseas, take an extended holiday, suffer from poor health or have an accident. It can also be useful when a person has reached a stage in their life when greater assistance is required to manage their personal affairs.

In this article we examine why appointing a Power of Attorney is so strongly recommended by lawyers and explain the difference between a General Power of Attorney and an Enduring Power of Attorney.

Selecting a person to act in your place

The appointment of your Attorney enables that person (or people) to act in your place and do the things you would normally do yourself; such as signing documents, paying the bills and doing the banking. The person you choose, your Attorney, has the right to represent you even to the extent that they can enter into agreements in your name and on your behalf.

Therefore, as a result of the power of the appointment, it is critical that you select the right person to act in that capacity. The person does not have to be a lawyer. In fact, it is important for the person to know you well and for you to trust them. It is often a trusted family member but whoever it is must be over 18.

The difference between a General and an Enduring Power of Attorney

Not all Powers of Attorney are the same.

A General Power of Attorney is a legal document that gives the Attorney the authority to make decisions about financial and legal matters, on behalf of the person who appoints them. This power lasts only for as long as the person who appoints them has mental capacity. The general power ceases to operate if the person that has made the Power of Attorney loses the capacity to make decisions. A General Power of Attorney is often used as a tool of convenience. For example, a person might appoint a General Power of Attorney to look after their financial and legal affairs in Australia while they travel overseas.

An Enduring Power of Attorney is similar to a General Power of Attorney except that the powers continue, or endure, in the event the donor loses mental capacity. In New South Wales, a document appointing an Enduring Guardian can be used alongside an Enduring Power of Attorney to authorise medical and health decisions. An Enduring Power of Attorney, unlike the General Power of Attorney, must be explained to you by a prescribed witness, that is, a lawyer. It is important to be aware that an Enduring Power of Attorney becomes void when you die.

What happens if you lose capacity without having a Power of Attorney?

The probability that someone can lose capacity is often not properly considered by people.  However, if you do not have an Enduring Power of Attorney and develop a mental incapacity, you are therefore unable to manage your financial affairs. It is too late then to have a lawyer prepare such a document as you do not have the capacity to sign it.

The difficulty is that no person automatically has the right to manage your assets; not even if they are your husband or wife. This, therefore, has a colossal effect on all the financial decision-making thereafter especially with bank accounts and jointly-owned assets and liabilities.

To have decisions made in these circumstances would then involve an application to the NSW Civil and Administrative Tribunal (formerly the Guardianship Tribunal). The applicant, usually a family member, would apply to become your financial manager subject to that person being deemed ‘fit and proper’ by the Tribunal. Failing this, the Tribunal may appoint the NSW Trustee and Guardian to manage your affairs.

If the NSW Trustee and Guardian is appointed, your spouse may need to consult with a government department to deal with your ongoing financial decision making until your death.

When does the Attorney’s power begin? 

You may nominate when your Attorney’s power is to begin.  If you do not name a date or an occasion, it begins immediately.  On the other hand, if you lose the capacity to make such decisions before the date or occasion you name, the power begins at that point.

It is important to note that even if you give your Attorney power immediately, you may also continue to make decisions yourself while you are able to do so. By providing a Power of Attorney, you do not restrict or give up the right to make financial decisions.

Summary

Powers of Attorney are used as a precautionary step by sensible adults. Professional groups such as accountants and lawyers, all strongly recommend that their clients make a Power of Attorney to protect their assets (if a person loses legal capacity), and prevent their loved ones being put through unnecessary stress.

If you or someone you know wants to know more don’t leave it to late, please contact us on 02 9955 6692 or email info@hslegal-commercial.com.au

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GST and Residential Property Transactions

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GST and Residential Property Transactions

 

The responsibility for remitting Goods and Services Tax (GST) to the Australian Taxation Office (ATO) generally falls on the party making a ‘taxable supply’. In a property transaction, this has traditionally meant the vendor or developer (supplier), unless the contract provides otherwise.

From 1 July 2018 purchasers of ‘new’ residential property must deduct the GST from the purchase price of the property and remit this directly to the ATO, on or prior to completion. These reforms are designed to strengthen compliance with GST obligations and specifically address concerns involving some property developers making taxable supplies and failing to remit the GST collected on those sales to the ATO.

The changes are implemented through the Taxation Administration Act 1953 (Cth) which operates Australia-wide and therefore potentially affects all purchasers, vendors and developers of residential property.

What types of transactions are affected?

The reforms apply to ‘new residential premises’ or ‘potential residential land’. Property that is ‘new residential premises’ means property that:

  • has not previously been sold as residential premises; or
  • has been created through a substantial renovation of a building; or
  • has been built to replace demolished premises.

‘Potential residential land’ is land that is permissible to be used for residential purposes but does not contain any buildings that are residential premises (i.e. houses or strata units). The inclusion of the term ‘permissible’ means that if the local government zoning allows a mixture of residential and commercial use, then that land is still considered ‘potential residential land’.

For the most part, the reforms essentially apply to all off-the-plan residential property purchases and vacant land in a new subdivision. The changes commenced on 1 July 2018 and affect all relevant contracts, however contracts entered before 1 July 2018 are excluded if the purchase price is paid before 1 July 2020.

What do the purchasers of new residential property need to do?

If you have entered or enter a contract for new residential property which is caught by the provisions, you will need to withhold and pay the relevant GST from the contract price to the ATO on or before ‘supply’ (which in most cases will be the settlement date). Generally, the GST amount will be:

  • 1/11th of the contract price; or
  • 7% of the contract price if the margin scheme applies.

Vendors and Developers will need to provide written notice of their GST obligations and, if GST is payable, this component must be withheld from the contract price and remitted to the ATO. The contract price does not include settlement adjustments such as council and water rates.

What do Vendors and Developers need to do?

Vendors and Developers must not sell residential premises or potential residential land without providing written notification to a purchaser, regarding the requirement to withhold and remit GST from the contract price. If there is no requirement to withhold GST, this must be clearly stated on the notice.

If a GST amount is required to be held, the notice must include the supplier’s ABN details, the correct entity for payment of the GST, the settlement date and the amount payable. The notification may form part of the contract for sale or be provided separately. The GST is paid directly to the ATO by the purchaser on settlement and applied as a credit towards the supplier’s GST account.

Consequences for Vendors and Developers

The regime has significant implications on Vendors and Developers, who should ensure processes are in place to deal with the changes.

  • Existing contracts should be reviewed to determine if they will fall within the provisions and therefore require the appropriate notification (for example, contracts that are already on foot but will not settle until after 1 July 2020).
  • New and Pro-forma contracts should be reviewed and amended in line with the provisions and, where relevant, include positive obligations for purchasers to remit the GST to the ATO, noting that credits will not be able to be claimed unless/until the GST component has been remitted.
  • Failure to notify a purchaser in accordance with the regime is a strict liability offence and developers face penalties of up to (currently) $21,000 for individuals and $105,000 for corporations. Consequently, systems should be updated to ensure the inclusion of the appropriate notices for the supply of residential land.
  • The provisions effectively prevent developers from interim access to the GST component of a settled contract, which was previously available until the BAS was lodged and assessed for the relevant period. This could impact available working capital and developers may need to review their cash flow requirements to manage the provisions.
Conclusion

The reforms are aimed at improving the integrity of the property development industry and ensuring suppliers comply with their tax obligations. They add additional steps to the conveyancing process for residential property transactions, however, can be managed through appropriate processes and systems.

If you or someone you know wants to know more don’t leave it to late, please contact us on 02 9955 6692 or email info@hslegal-commercial.com.au

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The Northern Territory Has A New Migration Program! Skilled and Semi-Skilled Migrants for Labour Shortage.

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Designated Area Migration Agreement (DAMA)

 

The Designated Area Migration Agreement (DAMA) was created by the Department of Home Affairs to facilitate a flexible approach to hiring migrants in industries experiencing skill and labour shortages. The DAMA program is currently only available in the Northern Territory.

Under the DAMA program, employers can sponsor skilled and semi-skilled migrant workers where workers are unable to be sourced within the local market. This program acts as an agreement-based framework with certain employers who apply to sponsor a migrant under the DAMA program.

The difference between the DAMA program and other employer-sponsored visa programs (such as the 482 visa or 186 visa etc) is that the DAMA program provides flexibility on meeting nomination and visa criteria not offered through other employment migration programs.

This flexibility includes:

  • Eligible businesses have access to occupations not available through the standard employment programs (such as the 482 visa) occupations lists;
  • Concessions on the required English requirements for visa applicants; and
  • Concessions on the Temporary Skilled Migration Income Threshold (TSMIT)- TSMIT is the minimum amount for skilled migrations to be paid through temporary employment programs (such as the subclass 482 visa)

There are certain requirements which an employer and a visa applicant must meet to be eligible for the DAMA program in the Northern Territory.

If you would like to discuss the DAMA program and see whether you are eligible, or want to obtain a complete list of the occupations included within the Agreement, please contact Harbourside Legal Services for a consultation with an Expert Immigration Lawyer.

Contact: info@hslegal-commercial.com.au or call 02 9255 6692 today.

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Quick turn-around in a problematic case – Partner visa (subclass 820/801)

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The importance of obtaining correct advice and presenting all arguments and material when an application is lodged, cannot be understated.

Importance of correct immigration advice and comprehensive work

 

Initial enquiry

Our client initially came to Harbourside Legal Services seeking assistance with an immigration matter due to an error by a former representative; one that left a family in a very unstable situation. The client was on a Bridging visa A, after lodging an application for a second visitor visa in Australia to spend more time with her Australian citizen partner. Unfortunately, her child was not added onto the visitor visa application which resulted in the child ceasing to hold any kind of visa in Australia. The client contacted the office for a second opinion; a strategy to move forward and rectify the situation was provided.

The Process

As the client was in a long-term relationship with an Australian citizen, advice given was to lodge a Partner visa and withdraw the pending visitor visa to avoid a refusal. As the visa was going to be lodged whilst the client and her daughter did not hold a substantive visa in Australia (which is a visa other than a bridging visa), the applicant was required to meet additional criteria known as Schedule 3 (contact Harbourside Legal Services to lean more). The client made contact with a Solicitor within 28 days of her last substantive visa expiring. Action was taken immediately, and the Solicitor worked closely with the client to rectify her daughter’s visa status in Australia; and to lodge a partner visa application.

The Outcome

Due to the quick and comprehensive legal work on the application at time of lodgment of the visa application, the visa was granted in less than 6 months. This is well above the average processing time of 25 months and the clients were able to continue living together as a family without any stress.

It is important that when lodging visa applications in Australia, an applicant must obtain the correct advice and have a plan of action with expert guidance; this increases the prospects of success. Brett Slater Solicitors were able to apply for the application, with all material required, in order for the Department to make a quick assessment.

Harbourside Legal Services pride themselves on giving expert service to clients. Click here to read more articles or learn more about the Team

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Not all is lost if you lose your permanent residency.

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Situations can arise for people who once held permanent residency as an infant, and left Australia as a child, only to want to return to Australia as an adult with no viable permanent visa options (sometimes due to age, employment skill set etc.)

Importance of obtaining legal advice and comprehensive work to regain permanent residency.

 

Initial enquiry

The client came to Harbourside Legal Services after seeing other agents, seeking options to remain in Australia with his parents and brother (who were all Australian citizens). The client was the only person in his family not residing in Australia, and wanted desperately to live with them. Previously, he had only received advice to apply for a remaining relative visa which can take up to 30 years to process. This client no longer held a permanent visa.

The Process

The client came to reside in Australia on a permanent visa, when he was just an infant. Family circumstances changed after one year of living in Australia, and the family left Australia and went back to their country of origin. Over time, the client’s family made their way back to Australia and became Australian citizens. Due to work commitments, the client stayed in his country of origin and would only visit Australia on visitor visas to see his family for holidays.

In these circumstances the client held no permanent visa, and when he did hold a permanent visa, it was for 1-2 years only. Regardless, any temporary visa held vacates a permanent visa.

Whilst the client was in Australia on a visitor visa, he wanted to remain with his family permanently. However, he did not have any skills or qualifications that were on the skilled occupation list provided by the Department, and he was also over the age of 45 years old (presenting further complications). Not wanting to apply for a remaining relative visa (which can take up to 30 years to process), a Brett Slater Solicitor assisted the applicant in presenting a strong and compelling case for a Resident Return Visa. This seems impossible right?

The Outcome

Due to the comprehensive submissions on behalf of the client, the Department granted an Australian Resident Return visa with one-year travel facility in under 3 weeks!

If you think you are in a situation, and have no solution speak with a Solicitor today! We think ‘outside the box’ and are driven to provide our clients with visa opportunities which may be available to them, subject to eligibility requirements.

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

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