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Deal or no deal? Telco Financing Scam as seen on Today Tonight - Featuring Lauren Magasdi - Attwood Marshall Lawyers

Written on Wednesday, 1st February, 2012

We're being warned to think twice before signing up with a telco financing system, especially for a deal that seems too good to be true.

 

One man has spent $16,000 on a deal that included a free television. It seemed to be a good idea at the time, but has proven to be outrageously expensive.

Six years ago, when a Salesman knocked on 74-year-old Christmas tree farmer Alex Costa's door, he couldn't believe the deal he was being offered.

All Costa had to do was sign over his business phone line for five years, and in return the company, Axsiom, would give him a free 42 inch plasma TV.

The deal contract ends next week, and will end up costing Costa more than $16,500.

For five years a company called Quikfund has been debiting $275 from Costa's account each month.

While it was more than what he was previously paying, having the TV thrown in, according to him, made it all worth it.

We take the money out of your bank, and we pay for your telephone, simple as that - and at the end of five years the TV is yours,” Costa said.

Even though Costa switched back to Telstra a year ago, the contract he signed has meant he has had to keep paying.

“That's a pretty expensive TV. It turned out to be a gold TV, not a normal TV - it's made out of gold,” he said.

Costa isn't the only one to fall for this Telco financing scheme. A free laptop has ended up costing mechanic Kent Phillip's business even more.

He signed up for a four year capped $550 a month phone plan, but when he checked his statements, he claims three companies - including Quikfund and Axsiom - were debiting $1800 in total.

After breaking the contract nine months in, because Phillip claims the phones weren't working, Quikfund took him to court for $23,000 and won.

He vows to keep fighting.

“We've spent more fighting it, but I think it is worth it,” Phillip said.

Another one to fall for a similar deal was Greg Stevenson, who nearly lost $20,000 on a similar contract.

“We signed for the cheap telephone calls and the plasma TV, and after about eighteen months, the telephone company closed down. So we ended up without the phone calls, and we still had to pay the finance,” Stevenson said.

He fought the company, Enterprise Finance Solutions Directly and won, now he runs website Telco-Finance Scams.com to help others.

“Plasma televisions, photocopy machines, fax machines, phone systems - we've had everything - from boats and sheds to cash incentives,” lawyer Lauren Magasdi from Gold Coast law firm Attwood Marshall Lawyers said.

Magasdi knows this hard sell method better than most. She launched a class action to help thousands of victims stung by what she describes as unfair terms and conditions.

“There are multiple finance companies, Quikfund is just one in a very big sea,” Lauren Magasdi said.

“There are over 20,000 contracts Australia wide, of which we have been retained by over 300 claimants,” she added.

In a statement Quikfund claims they stand by their contracts, and are committed to sorting complaints out. They refer to Costa as a good client, who never missed a payment, and never made a complaint - like tens of thousands of other satisfied clients they have.            

Lawyer Sarah Wilson from the Consumer Action Law Centre says there are plenty of groups out there signing up customers to contracts they don't fully understand.

The devil, she says, is always in the fine print, so check it.

“If you do have a dispute about a contract, you need to contact your state consumer affairs department. If that term is unfair, then it may be removed,” she said.

Statement from Quikfund

Alex was a good client. He didn’t miss a payment and there was never a complaint. We’ve had tens of thousands of satisfied clients. If there is a complaint we sort it out – in all our interests. Sometimes it’s difficult, often when people’s circumstances change and they can no longer afford the payments.

Resource by: Jonathan Creek - Today Tonight Report - 31st January 2012 

Should you require any further information in relation to this matter, please go to our dedicated Telecommunications Class Action page or contact our Lauren Magasdi on 1800 621 071 or email lmagasdi@attwoodmarshall.com.au.

If you are interested in joining our class action group, why not complete our Telecommunications Class Action Questionnaire  and have us contact you! 

 

        

 

 

            

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Beware business owners – you need to update you warranty on your products as of Jan 2012

Written on Wednesday, 25th January, 2012

As of 1 January 2012 there are new laws in force that affect refund policies and warranties.

You may now be required to update your policy, packaging and advertising material.

Also relevant training may need to be provided to staff members to be able to assist a customer when the customer asks about any warranties.

All Australian businesses will need to comply with The Australian Consumer Law and the Trade Practices Amendments Regulation 2010 (No.1).

If you have a warranty against a defected product or sell products that holds a warranty you need to update the wording of your warranty to ensure you comply with the new legislation.

All warranties against defects must include the following statement:-

"Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure."

If your business has its own specific warranty it must be stated that "The benefits under [Our Warranty] are in addition to other rights and remedies under a law in relation to the [goods/services]"

You must also ensure that the warranty is accessible, legible and written in plain text as a customer would be able to understand. You must also provide all business contact details.

If you fail to comply with the new regulation you may be fined up to $1.1 million for a company and $220,000 for an individual.

Remember also – it is unlawful to sell an extended warranty that only includes benefits that are already outlined in Australian Consumer Law.

Retailers should have their warranties and policies reviewed by a solicitor to ensure compliance.

For more information call Attwood Marshall Lawyers on (07) 5536 9777 or email info@attwoodmarshall.com.au

 
 

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Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

The ‘Big Banks’ Class Action – By Lauren Magasdi - Lawyer

Written on Wednesday, 25th January, 2012

2011 saw one of Australia’s largest class actions commence against ANZ bank in the Federal Court of Australia.

The claim, brought by Maurice Blackburn on behalf of 34,000 customers, and funded by IMF litigations funding, alleges ANZ bank were charging a penalty  in the form of the following fees:-

  1.  Honour fees;
  2. Dishonour fees;
  3. Over-limit fees;
  4. Non-payment fees; and
  5. Late fees.

 

Lenders are precluded from charging penalties under the Consumer Credit Code [year] (“CCC”) and the action claims that the above fees imposed by ANZ were thereby in contravention of the CCC.

On 5 December 2011, the Federal Court considered that four of the five fees charged by the ANZ bank were legitimate but that the fifth ‘dispute’, that of the ‘late fees’ could potentially be a penalty and therefore unenforceable.

The final determination is yet to be made by the Federal Court until such time as further evidence is provided however the above comments give an indication the position of the court at this stage in the proceedings. Whilst ANZ conceded that the charge was not a genuine pre-estimate of their costs which they may incur, ANZ argued that when properly characterised, a late payment fee was a fee charged by it, as part of the operation of the account and in respect of the increased risk of default in repayment of the amounts borrowed.

In essence, a penalty cannot arise in circumstances where the effect of a transaction is for a customer to request an indulgence of their bank. Absent a breach of contract, the law simply refuses to tolerate an argument that a charge applied by a bank is unenforceable as a penalty, as the bank would reasonably incur costs as a consequence of the indulgence.

On 19 December 2011 at a press conference held by the lawyers for the class action litigants, it was revealed that the remaining big banks, CBA, NAB, Citibank and Westpac would also be targeted. It is expected that proceedings will be commenced against them for late fees charged on credit cards.

When the matter resumes in the Federal Court, following the addition of evidence, ANZ is expected to justify the size of the fee and may seek to attribute some part of the fee to credit risk.

 
 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Employers must ensure the security of workers - By Jeff Garrett - Legal Practice Director

Written on Wednesday, 25th January, 2012

A litany of traumatised people has been left following the spate of armed robberies and violent crimes on the Gold Coast, most notably the shooting death of policeman, Damian Leeding.

Our hearts go out to the family of Constable Leeding who died courageously doing his duty.

We must also spare a thought for the courageous employees of the various businesses that have been robbed. 

There are many workers who have not been able to return to their usual place of work or their usual occupation because of the psychological trauma involved with going through an armed robbery.

As personal injury lawyers, we have acted for many workers who have endured such terrifying ordeals - guns shoved in their faces by desperate criminals making demands for money, as well as brutal physical injuries from cowardly robbers.

Some people take it in their stride and are back at work the next day. 

Others simply cannot face going back to their workplace – the scene of the crime and in some cases, fear of further robberies or attacks, prevents them from resuming their occupations.

There are various terms for the psychological conditions people suffer from that prevent them from returning to work - "nervous shock", "adjustment disorder" and others. 

The simple fact is that people can be severely affected by the trauma associated with armed robbery and may live in fear for months, years or in severe cases, the rest of their lives.

It can affect their sleeping patterns, create mood swings and put pressure on relationships. It can also affect general confidence and create a range of issues that change how they approach their day-to-day routines and interaction with families friends and work mates.

Luckily, most workers are covered by worker's compensation insurance and have access to medical treatment, counselling and financial support. 

In some cases, there may also be recourse to criminal compensation but there are some limitations in relation to this scheme.

In many cases employers do not take adequate measures to ensure the security of their staff, especially in businesses or locations that are prone to armed robbery such as service stations, late night shops and liquor stores. 

In cases where workers have suffered a significant trauma and/or injury, it could well be that they have a claim in negligence against their employers for failing to adequately provide for their security.

The increase in armed robberies should place all employers on notice and hopefully provide them with cause to review their security arrangements for their workers.

For more information call Attwood Marshall Lawyers on (07) 5536 9777 or email info@attwoodmarshall.com.au.

 
 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Representative Class Actions - Strength in Numbers

Written on Monday, 16th January, 2012

Do you believe that everyone has a voice and should be able to express their opinion and do something about their concerns?

Are you not the only one that may have been ripped off or scammed?

Do you know that there are more people that will come forward if a class action was being represented?

Then don’t be shy and let us know!

Every day, people are being ripped off by large companies. Most people won’t take any action as they don’t have the proper resources or man power, and in some cases, knowledge of a representative action. Let us help you, all you need is 7 people and a law firm like Attwood Marshall to get you on your way.  

We urge you to do something about it today!

As you may have seen your everyday Joe Blow is now taking a stand, in numbers!

Representative class actions are the perfect avenue for over 7 claimants to proceed against a mutual entity regarding the same dispute.

Class actions are cost effective and strong. They have the benefit of combining evidence through numbers. They also have a greater likelihood of their concerns being heard.

The greater the members in the class, the better. It may be something as small as a penalty owed to the big banks, or could be and large as a medical issue or life changing loss of income as a result of a scam.

We want to help you.

Our Commercial Litigation team here at Attwood Marshall can answer your queries and assist you with this or any other issue you have. Contact an Attwood Marshall Lawyer today on 1800 621 071 or email jhuckstepp@attwoodmarshall.com.au.

 
 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Self Managed Superannuation Funds (SMSF) & Death Benefit Nominations - By Angela Harry - Senior Estate Planning Lawyer

Written on Monday, 16th January, 2012

By the time most people reach retirement, they will have considerable wealth built up within their self managed superannuation funds (SMSF).  What a lot of people do not realise, is that the assets of your SMSF do not automatically form part of your Estate to be distributed in accordance with the terms of your Will.  There are strict rules regarding payment of superannuation death benefits, including who they can be distributed to and who makes the decisions regarding these distributions. This is where Death Benefit nominations become important. 

Whilst most people are aware of the term ‘Death Benefit Nomination’ when talking about their superannuation, many however, are unaware of the importance of such nominations and how they can impact on their Estate Planning. 

There are a number of different types of Death Benefit Nominations available within your SMSF, namely:- 

1.   Nominations of Preferred Beneficiary

Sometimes known as a ‘non-binding death benefit nomination’, is a situation where the member details their preferred beneficiary to receive the superannuation proceeds on their death. However, this nomination is not binding on the Trustee who has discretion to override the nomination. 

2.   Binding Death Benefit Nominations 

As an alternative to the above, a binding death benefit nomination (BDBN) does not allow the Trustee discretion regarding payment of the super proceeds. The Trustee must pay the member’s benefits to the person(s) nominated, provided the nomination is valid (ie, the form must comply with the rules of the SMSF Deed and the person(s) nominated must be a dependant of the member or their legal personal representative). 

It is important to note that not all SMSF deeds allow for BDBN’s. Before completing a BDBN, it is essential to review the terms of the SMSF Deed and where BDBN are not allowed for, an amendment is desirable. 

3.   Reversionary Pension Nomination 

This form of nomination is only applicable in the circumstances where the member is already receiving a pension and nominates the option of a reversionary pension at pension commencement. The pension will automatically revert back to the reversionary pensioner on death of the member.  The important thing about having a reversionary beneficiary is that it must be a valid nomination. The only beneficiaries who can inherit a member’s pension as an income stream are a spouse or financial dependent of the member (note: there are restrictions on paying pensions to child dependants over age 18 unless they are a student under age 25 or a child who is disabled). 

It is important to note that not all SMSF deeds allow for reversionary nominations. Before completing a reversionary nomination, it is essential to review the terms of the SMSF Deed and where reversionary nominations are not allowed for, an amendment may be desirable. 

4.  Death Benefit Rule within SMSF Deed

This is built into the SMSF Deed’s governing rules and provides direction that a death benefit is paid in a particular way. Included would be specific details such as forms of payment, payment of different superannuation interests to different beneficiaries, providing alternative options should member’s first preference not be available and nominations of replacement Trustee on their death. Such Death Benefit Rules within the SMSF are often referred to as a ‘SMSF Will’.

Our Wills and Estates team at Attwood Marshall can answer your queries and assist you with this or any other issue you have. Contact an Attwood Marshall Lawyer today on 1800 621 071 or email lbarnes@attwoodmarshall.com.au.

 
 

 

 

 Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Don`t let a bingle spoil your holidays - by Jeff Garrett - Legal Practice Director

Written on Monday, 16th January, 2012

During the Christmas holiday period, there are many car accidents so it is important that drivers know their rights in relation to third party claims.

Although there are different laws in each state, the basic principles are the same. It starts when we register our cars - part of the fee paid is for compulsory third party insurance.

This insurance is to cover you, as the driver of the car, if your negligent driving causes an injury to others.

It does not matter who the driver of the car is or how at fault they are, the insurance covers anyone who is injured by an negligent act of the driver. It includes any passengers in the car of the person who is driving, drivers and passengers of other vehicles and pedestrians.

Many people get third party insurance confused with property damage insurance that we usually hold for our cars. This insurance only covers the physical damage to vehicles but does not cover injuries to people.

The registration papers for your car will name the compulsory third party insurer. You can change this when you renew your registration.

You are also covered even if the car involved us unregistered.

There is a "nominal defendant" fee included in your registration. This covers unregistered vehicles and vehicles that cause accidents that cannot be identified or located, such as hit and run accidents.

To bring a claim you must be injured and the accident must be reported to police.

In most cases you need to file a claim form within six months of the accident or within one month of consulting a lawyer.

There can be arguements about who is at fault. We have seen many people who think that an accident is their fault when it actually isnt.

We are happy to answer any questions in relation to any possible claims that you might have. We accept these claims on a "no win no fee" basis and do not charge for the initial consultation.

As published in the Gold Coast Sun on January, 11 2012.

Download Motor Vehicle Accident Claim forms:

QLD: Notice of Accident Claim Form

NSW: Accident Notification Form

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Be EXTRA careful on the roads this silly season and have a safe and injury free Christmas and New Year!

Written on Tuesday, 20th December, 2011

It is amazing how many people do not understand the system that we have for compensating people injured in car accidents. Although there are different laws in each of the States, the basic principles are the same. 

It starts with the registration of the car involved.  When we pay our “rego” there is a part of this fee that is for compulsory third party insurance.  This insurance is to cover you as the driver of the car if your ‘negligent’ driving causes an injury to another person or people.  It does not matter who the driver of the car is or how at fault they are, the insurance still covers anyone who is injured by any negligent act of the driver. This is a ‘fault’ system. 

This includes any passengers in the car of the person who is driving, drivers and passengers of other vehicles that may be involved in an accident and also pedestrians. 

It does not matter whether you are related to the driver or that you are part of the driver’s family.  Many people do not realise that if their parent, spouse, sibling or friend causes an accident through their negligent driving, the relatives of that person can bring a claim for personal injuries against the compulsory third party insurer of the motor vehicle involved, if they are a passenger. 

Many people get third party insurance and compulsory third party insurance confused with property damage insurance that we usually hold for our cars.  This insurance really only covers the physical damage to vehicles but does not cover injuries to people. 

If you have a look at the registration papers for your car, you will see that it tells you who the compulsory third party insurer is – (eg. Suncorp, Allianz, NRMA etc).  You can change the compulsory third party insurer of your vehicle at any time when you renew your registration. 

You are also covered even if the car involved is unregistered.  You will see there is a “nominal defendant” fee included in the registration.  This covers unregistered vehicles and vehicles that cause accidents that cannot be identified or located (eg. hit and run accidents). 

To bring a claim you must firstly be injured and the accident must be reported to the Police.  There is a claim form that needs to be filled out and served upon the relevant third party insurer and there are time limits involved.  In most cases you need to file a claim form within six months of the accident or within one month of consulting a lawyer.  You can still bring a claim up to three years after an accident has occurred but there are pre-claim procedures which you must comply with before you can issue Court proceedings to preserve your claim, so it is wise to ensure that you do something about an accident as soon as you possibly can. 

There can also be arguments about who is at fault in a car accident.  We have seen many people who think that an accident is their fault when it actually isn’t or there should be an apportionment of liability for the negligence.  This means that you would still be able to maintain a claim for compensation, assuming that you suffer injuries. 

We are happy to answer any questions in relation to any possible claims that you might have.  We accept these claims on a “no win no fee” basis and do not charge for the initial consultation.

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

All I want for Christmas is a nice new home! Get your duty concession whilst you still can!

Written on Tuesday, 20th December, 2011

A reminder that NSW First Home purchasers have a little over two weeks to exchange a NSW contract and be eligible for the First Home Buyer’s duty concessions or exemption. On 1 January 2012, the First Home Plus duty scheme will be replaced by the First Home - New Home Scheme.

The First Home - New Home Scheme provides that a first home buyer will only be eligible for the duty concession or exemption if it is for the acquisition of a new home or vacant land intended to be used as the site for a new home. This will make a large number of first home purchaser’s ineligible for the concession/exemption they would otherwise have been eligible for in 2011.

Under the First Home Plus duty scheme , a Contract with a purchase price of $500,000.00 (if entered into prior to 31 December 2011) will give a first home buyer a total duty concession (a saving of $17,990.00).

If you are a first time home buyer and need a property settled in a timely manner, contact Christine Martin our Property and Commercial Department Manager on 07 5506 8245 or email cmartin@attwoodmarshall.com.au – WE OFFER DISCOUNTS ON OUR FEES TO FIRST HOME BUYERS!

 
 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Be careful with the brandy pudding this silly season or you could lose your licence! – by Lauren Magasdi

Written on Monday, 19th December, 2011

 

Imagine heading off to Christmas lunch or dinner in a few weeks, having a few soft drinks and a big chunk of brandy-soaked Christmas pudding, only to be pulled up by the police on the way home for being over the legal driving limit!

Sounds a little stupid but that could be the reality according to the new drink-driving discussion points from the Australian Transport Council which recently was replaced by the Standing Council on Transport and Infrastructure.

Good old Chrissie Pudding contains alcohol – and lots of it!  It is more commonly found that puddings purchased from local supermarkets and delicatessen’s, contain a warning about the levels of alcohol in the pudding. Studies have also shown that when warming a pudding in a microwave, compared to boiling or steaming, the alcohol content has less time to evaporate.

It is reported by the Telegraph that the booziest Christmas pudding on Britain's supermarket shelves is Marks & Spencer's The Collection Perfectly Matured Christmas Pudding which contains; brandy (7%), ruby port (4%), stout (3.5%), cognac (4%) and brandy-soaked cherries (4.5%) This gives the pudding (weighing in at 454 grams) an alcohol content of 21.5%!

On average, a 100gram individual portion of Christmas pudding (traditionally laced) is the equivalent to a standard shot of spirit.

Alcohol fuelled drivers are responsible for between 20-30 per cent of fatal road accidents, with the higher percentage recoded over the Christmas season. Even though the ads aren’t run anymore, there’ll never be a truer statement than “drink drive, and you’re a bloody idiot”.

When the blood-alcohol limit was brought down from .08 to .05, fatal crashes went down around 8 per cent. We now have one of the lowest road tolls in the world, and still decreasing.

Make this Christmas a safe one everyone – keep a mindful eye on how much you consume this year, and don’t overindulge on the Chrissy pudding!

 

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

“Third Party Claims” - CTP Insurance, Personal Injury Claims in Car Accidents - By Jeff Garrett - Practice Director

Written on Friday, 16th December, 2011

It is amazing how many people do not understand the system that we have for compensating people injured in car accidents. Although there are different laws in each of the States, the basic principles are the same. 

It starts with the registration of the car involved.  When we pay our “rego” there is a part of this fee that is for compulsory third party insurance.  This insurance is to cover you as the driver of the car if your ‘negligent’ driving causes an injury to another person or people.  It does not matter who the driver of the car is or how at fault they are, the insurance still covers anyone who is injured by any negligent act of the driver. This is a ‘fault’ system. 

This includes any passengers in the car of the person who is driving, drivers and passengers of other vehicles that may be involved in an accident and also pedestrians. 

It does not matter whether you are related to the driver or that you are part of the driver’s family.  Many people do not realise that if their parent, spouse, sibling or friend causes an accident through their negligent driving, the relatives of that person can bring a claim for personal injuries against the compulsory third party insurer of the motor vehicle involved, if they are a passenger. 

Many people get third party insurance and compulsory third party insurance confused with property damage insurance that we usually hold for our cars.  This insurance really only covers the physical damage to vehicles but does not cover injuries to people. 

If you have a look at the registration papers for your car, you will see that it tells you who the compulsory third party insurer is – (eg. Suncorp, Allianz, NRMA etc).  You can change the compulsory third party insurer of your vehicle at any time when you renew your registration. 

You are also covered even if the car involved is unregistered.  You will see there is a “nominal defendant” fee included in the registration.  This covers unregistered vehicles and vehicles that cause accidents that cannot be identified or located (eg. hit and run accidents). 

To bring a claim you must firstly be injured and the accident must be reported to the Police.  There is a claim form that needs to be filled out and served upon the relevant third party insurer and there are time limits involved.  In most cases you need to file a claim form within six months of the accident or within one month of consulting a lawyer.  You can still bring a claim up to three years after an accident has occurred but there are pre-claim procedures which you must comply with before you can issue Court proceedings to preserve your claim, so it is wise to ensure that you do something about an accident as soon as you possibly can. 

There can also be arguments about who is at fault in a car accident.  We have seen many people who think that an accident is their fault when it actually isn’t or there should be an apportionment of liability for the negligence.  This means that you would still be able to maintain a claim for compensation, assuming that you suffer injuries. 

We are happy to answer any questions in relation to any possible claims that you might have.  We accept these claims on a “no win no fee” basis and do not charge for the initial consultation.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Keeping ones word in an agreement!

Written on Friday, 16th December, 2011

We all have entered into a verbal agreement among friends, family and/or even a stranger at one time or another, where we relied on the good faith of all parties for the agreement to go smoothly. The common reasons for entering into a verbal agreement is because the party believed the risk was considered low at the time, is acquainted with the other party, the other party appeared to be a good bloke, and not seeking advice before entering into the agreement.  Hopefully in your case the transaction was successful, however many people are now facing costly and difficult disputes due to verbal and/or poorly prepared written agreements. Quite often written agreements are very unclear which creates   difficulty for the courts in trying to determine the parties intention. Sometimes critical terms of the agreement are missing such as the name or entityof the party to the contract,  the amount to pay, when to pay it , what happens if one party defaults on the agreement. If the  verbal agreement is too vague, it can be void for uncertainty. 

As a general guide verbal contracts can be just as binding as a written agreement and can be held up in a court, however the difficulty is proving what was agreed.

In some cases you may find it not necessary to have a detailed written agreement, especially if the value of the transaction is low and/oryou have a document that still protects your interests, for example a quote or tax invoice.

Verbal agreements can be substantiated by the conduct of all the parties, specific actions, and previous dealings. Despite this it is preferable to have an agreement in writing. 

Should there be a dispute regarding a verbal agreement you may have the following options:

  1. Talk to the other party and see if you can negotiate a solution. If you reach an agreement, put it in writing.
  2. Seek legal advice about alternative ways to resolve the dispute.
  3. If you cannot solve a dispute, contact a specialised Dispute & Commercial Litigation Lawyer to work to enforce your rights under the agreement.

 

Attwood Marshall Lawyers specialises in Dispute & Commercial Litigation in both Queensland and New South Wales. 

If you have a breach of agreement or cannot solve a dispute, do not hesitate to contact us.

We can also provide assistance for drafting or obtaining legal advice before entering into an agreement.

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

George Clooney visits downunder to promote his charitable childrens cause!

Written on Friday, 16th December, 2011

When George Clooney was asked at his fundraising function in Sydney yesterday whether he would like to have children, he replied that he would like to adopt a wealthy 30 year old – this begging the assumption that he might not want to deal with the challenges of bringing up children of his own.

When relationships fail, the children quite often become the ‘damaged goods’ of the end result and many have great difficulty making the adjustments which come with becoming a single parent family.  As the plight of many of these children was recently outlined in an article in the Sydney Morning Herald ...........

Sydney Morning Herald, December 10, 2011

‘Thousands of children will spend Christmas apart from their parents this year, and many will behave badly as a way of handling their sorrow.

There are 18,000 children in foster and kinship care in NSW. They are the hidden side of the dramatic story of child abuse and neglect that hogs the headlines.

The state has served these children poorly for 20 years. Once removed from the immediate danger of dysfunctional and abusive parents, many have fallen into a black hole. Are they being well cared for in foster care? Are they safe? Who knows?

To place a child for months or years with strangers, perhaps a series of them, or even relatives, is a huge act of trust. It is intrinsically hard for people to persevere with a child who is not their own, particularly one who may smash the furniture and bash a schoolmate.......

Read more: http://www.smh.com.au/opinion/society-and-culture/no-room-for-misers-in-foster-care-20111209-1ong7.html#ixzz1gO2WOyYy

http://www.smh.com.au/opinion/society-and-culture/no-room-for-misers-in-foster-care-20111209-1ong7.html

If you need help with a broken relationship or assistance with your custody issues please contact our caring team at Attwood Marshall Lawyers.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Injury to Molly Meldrum - A reminder to have our affairs in order! - By Jeff Garrett - Legal Practice Director

Written on Friday, 16th December, 2011

Who would have thought that Australian music icon, Molly Meldrum would be lying in hospital after brain surgery in an induced coma? 

It has been reported that he fell from a ladder whilst putting up his Christmas lights in readiness for a party at his place next week.  This is something that could happen to anyone of us but are we ready for this in our lives if it happened to us? 

This incident highlights the fact that this type of accident could happen to anyone and you really do need to make sure that your legal affairs are in order.  It remains to be seen how Molly responds to his surgery and treatment but, even if he does survive, he may be out of action for a significant period of time and could even have long lasting brain damage.  If he has been unfortunate enough to lose his mental capacity, hopefully he has an Enduring Power of Attorney in place so that people that he trusts can handle his medical and financial affairs. 

In the worst case scenario, if Molly was unfortunate enough to die from his injuries, he should have a properly drafted Will in place so that his assets are distributed to those beneficiaries that he wishes them to go to. 

Once again, it is a timely reminder to all of us that we should regularly review our Wills and Enduring Powers of Attorney to ensure that they accurately reflect what our wishes are in the event of something like this happening to us.

The Christmas break may well be an opportune time for people to reflect on these matters and get their affairs up to date.

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Facebook could see you fired! - As published in the Gold Coast Sun Legal Affairs - 7/12/11

Written on Saturday, 10th December, 2011

Be careful what you say on Facebook. 

Social media such as Facebook, twitter and other public forums enable employers to ‘screen’ employees or prospective employees and may allow the employer to terminate employment on the basis of disparaging remarks. 

People who vent via a public forum may be placing their jobs at risk. 

In the past six months, several cases of work termination have been reported on public media forums as a warning to users to be careful what they post on websites. 

Such reports include: 

  • A UK travel agent who posted comments on Facebook about a colleague, calling her a `‘brown-nosing cow’’;
  • A Newcastle bank employee who whinged about the bank’s customers, and;
  • A British woman who started her post by claiming she ‘hated her job’.
    •  

Now, some workplaces are imposing restrictions on employees making comments on social websites, including termination of employment. 

Unless someone has strict privacy settings, any and all comments made by an employee are available to the world at large. 

Employers also may review job applicant’s Facebook or other social media pages. 

Photos, the comments applicants make, and information published about them may help decide whether a person is given a job. 

However, there also may be consequences for employers. 

Several unfair dismissal cases flowing from comments made on social media have come before the courts. 

A Victorian hairdresser, for whom comments posted on Facebook were one of four reasons for dismissal, won her case and was awarded compensation. 

Comments of a defamatory nature posted on social media websites also can result in legal action and damages payouts. 

As well, following a precedent set in Victoria,persons can now be served through public forums with intervention orders, statements of claim and other legal documents. 

For more information please contact our Commercial Litigation and Dispute Resolution team at Attwood Marshall Lawyers on on (07) 5536 9777.

 
 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Does Kim Kardashian have a Binding Financial Agreement?

Written on Tuesday, 6th December, 2011

We certainly hope so!

We occasionally hear people say they have done a “property settlement” with their spouse by way of a verbal agreement as they have viewed their separation as “amicable”. They may in fact have sold and divided assets of the marriage without legally formalising this arrangement.

If you both agree on how to divide property, you may finalise property settlement in two ways. You can enter into a written agreement in a form of a deed called “Binding Financial Agreement”, or you can obtain a Consent Order of the Family Court by filing certain prescribed documents. Although you are required to file documents at the Family Court Registry, neither of you are required to appear in Court.

Properly drafted financial agreements and consent orders are very difficult to challenge, and they are the most effective ways to prevent your former partner from demanding further property distribution in the future.

Avoid the hassle of costly litigation. Contact our family law department today and find out more about Binding Financial Agreements and Consent Orders. 

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

New Personal Security System receives Green Light - By Barry van Heerden - Partner

Written on Tuesday, 6th December, 2011

The most anticipated Personal Property Securities Act 2009 will formally commence on 30 January 2012. 

All existing securities which are registered on any State, Territory or National Register will be transferred over to the new Personal Property Securities Register (PPSR) from 21 November 2011. 

The new Act allows for one register (PPSR) in which securities relating to personal properties can be registered to provide security and priority over other securities. 

The PPSR will be a "one stop shop" for anybody who wants to do a search to determine whether any goods are secured.  On the other hand, if you wish to register any interest in goods, which can be anything from supplying goods in terms of a Retention of Title Agreement, consignment, charges over a company, hire purchase equipment or lease of goods, you may register your interest in the PPSR which will allow you protection of your interest. 

Should you fail to register your interest you may find that other parties have priority over your interest and in case of liquidation or bankruptcy you may even lose your property entirely.  

We strongly recommend that any client who currently has some interest registered over personal property to consider the following:- 

  1. Review your current securities.
  2. Check whether your registered securities will be transferred to the new PPSR.
  3. Contact us should you require any assistance or are unsure about the process.
    4.  

We will publish further blogs in relation to the PPSR closer to the final date of implementation.

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

NSW Retail Leasing: Bonds lodgement and Lease disputes - By Tia Haynes - Commercial Property Lawyer

Written on Tuesday, 6th December, 2011

The current financial climate has had far-reaching affects on the business market, with many businesses now facing financial difficulty.  Disputes between Landlords and Tenants and claims on the bond money are becoming a great deal more common.

Two issues in this area that merit discussion are: 

  1. A reminder that Landlords must correctly deal with the Lease bond and lodge it within the prescribed timeframes; and
  2. Steps prescribed under the legislation where disputes arising between the Landlord and Tenant cannot be readily resolved.

 

Requirements on Landlords to lodge the Bond

All retail Leases within NSW fall within the ambit of The Retail Leases Act 1994 (NSW) (“the Act”). The Act provides strict provisions regulating the lodgement of bonds under a retail Lease.

Section 16C(2) of the Act provides that the Landlord must deposit with the Director-General an amount of money equivalent to the amount of the security bond not later than 20 business days after:

(a)        the date of receipt of the security bond, or

(b)        the date on which the Lease became, or the proposed Lease becomes, binding on the parties,

whichever is the later.

Landlords may face a penalty of up to $2,200.00 for failure to comply with the time limits above.

The bond must be lodged through the NSW Retail Tenancy Unit, and must be accompanied with the prescribed form. Further information, including how to obtain the correct form, can be found on the NSW Fair Trading website (www.fairtrading.nsw.gov.au).

Disputes arising between the Landlord and Tenant       

Disputes between Landlords and Tenants are particularly prevalent at present. The disputes commonly relate to a breach under the Lease, usually in relation to  payments under the Lease that the Tenant has failed to make. Regardless of the content, where the dispute cannot be resolved, the Parties must have regard to the Act to try to resolve the dispute, prior to litigation being considered.  

Section 68(1) of the Act provides that a retail tenancy dispute cannot be the subject of proceedings before any court until the dispute has been referred to mediation.

Mediationis a process in which the Parties identify the issues in dispute, with a mediator present, working together to reach an agreement. The mediator does not provide advice, but rather the mediator’s role is designed to facilitate an agreement.

Section 67 of the Act outlines that mediation is not limited to formal mediation procedures but may include:

(a)        preliminary assistance in dispute resolution, such as the giving of advice designed to ensure that the parties are fully aware of their rights and obligations and that there is full and open communication between the parties concerning the dispute; and

(b)        other appropriate forms of alternative dispute resolution.

Mediation (or another form of alternative dispute resolution) provides an environment in which Parties to the dispute are able to discuss the dispute openly and freely. Section 69 of the Act provides that any statement or admission made in the course of the mediation is not admissible at a hearing or any other legal proceeding.

Although there are a number of types of alternative dispute resolution (ADR), the more common forms are:

  • Arbitration: Both the Landlord and Tenant put forward their arguments and evidence which is reviewed by the arbitrator, a neutral third party, who then reviews the case and imposes a decision that is legally binding on both sides.
  • Facilitation: A process in which the Landlord and Tenant, with the assistance the facilitator, identify problems and disputed issues to be resolved. The facilitator has no advisory or determinative role on the content or outcome, but may advise on or determine the process of facilitation.
  • Conciliation: The conciliator meets the Landlord and Tenant separately in an attempt to resolve their differences. The conciliator attempts to lower tensions, improves communications, interprets issues, provides technical assistance, explores potential solutions and brings about a negotiated settlement. The conciliator does not determine the dispute.

 

Conclusion

Landlords need to be aware of their obligations relating to lodging the bond under their Lease. Where the Landlord is legally represented, their lawyer will advise them on this, and arrange for the correct bond lodgement, to avoid breaching the Act and resulting penalty.

With regard to disputes, the Act notes that the first step in any dispute is to ensure that the parties have read their Lease and have spoken to one another about their concerns in an effort to resolve the dispute. If the dispute is not resolved at this stage, we suggest contacting your lawyer to assist in resolving the dispute quickly, before the expense of mediation, ADR or potential litigation is incurred.

Attwood Marshall has lawyers available who specialise in Leasing and would have happy to discuss your leasing matter with you.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

First Home Buyers have last chance for Concession before Christmas!

Written on Thursday, 24th November, 2011

NSW first homebuyers are to face tighter Stamp Duty Concessions in an effort by the Government to stimulate new building activity.  From January 1, 2012 significant changes will be made to the current exemption and concessions offered by the NSW Government.  The current scheme will be replaced by the First Home – New Home Scheme.

What does this mean on the Purchasers?

Purchasers  between now and January 2012, who are first time home buyers must act quickly  to make the most of existing benefits before they are abolished.

First time home buyers currently pay no stamp duty on all properties under $500,000, and receive a discount for properties valued up to $600,000. First home benefits of up to $24,990 have been available, including the $7,000 First Home Owner Grant and a duty exemption of up to $17,990 under the First Home Plus Scheme.

Please note that any contracts entered into before 31 December 2011 will still be dealt with under the existing scheme.

NEW SCHEME

However, the new scheme means that from 1 January 2012, the stamp duty concessions will apply only to newly constructed homes - including those built off the plan.

The main changes are as follows:-

The agreement or transfer must be for the acquisition of a first home which is a new home or a vacant block of residential land intended to be the site of a first home. This includes the acquisition of:

(a)  a new home (that is a home that has not been previously occupied or sold as a placeof residence);

(b)  a substantially renovated home;

(c)  a vacant block of residential land (that is an agreement for the sale or transfer of vacant land that is intended to be used as the site of a first home).

Under the legislation, substantial renovation of a building is defined as a renovation in which all, or substantially all, of a building is removed or replaced.  The renovation may, but need not, involve the removal or replacement of foundations, external walls, interior supporting walls, floors, roof or staircases.

The entitlement is limited to an eligible purchaser. An 'eligible purchaser' is a natural person (i.e. not a company or trust) at least 18 years of age who has not, and whose spouse/de facto has not:

(a)  at any time owned (either solely or with someone else) residential property in Australia other than property owned solely as trustee or executor;

(b)  at any time been the holder (either solely or with someone else) of a leasehold interest granted by the Commonwealth in residential property in the Australian Capital Territory;

(c)  previously received an exemption or concession under First Home Plus. 

Other conditions:-

  • The residency requirements remain the same (must be occupied by at least one of the purchasers for a minimum of 6 months within the first 12 months of ownership)
  • Applicants may still be eligible for the First Home Grant even if they do not qualify for the stamp duty exemption
  • The exemption does not apply if the applicant is purchasing an old home to demolish and rebuild or renovate, it is only applicable for vacant land purchases OR if the home they wish to purchase has already been substantially renovated and never lived in.

 

Price eligibility is limited to:

  • $600,000 for a new home or off the plan purchase
  • $450,000 for a vacant land purchase

 

Where an eligible transfer is approved, no duty is payable where the dutiable value of the property is not more than –

(i) $500,000 for a new home, or

(ii) $300,000 for land being purchased to build a new home. 

Where the price exceeds the amounts mentioned in (i) and (ii) above, a reduced duty is payable between that amount and the ceiling amount permitted.

It is still permissible under the new legislation to have an equity partner involved the transaction.

The following link has a full explanation of the points covered above together with Q & A for those more frequently asked questions:  http://www.osr.nsw.gov.au/benefits/first_home/faqs/new_home/

If you are a first time home buyer and need a property settled in a timely manner, contact Christine Martin our Property and Commercial Department Manager on 07 5506 8245 or email cmartin@attwoodmarshall.com.au – WE OFFER DISCOUNTS ON OUR FEES TO FIRST HOME BUYERS!

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Home kits inspire big battle of Wills! By Jeff Garrett - Legal Practice Director

Written on Thursday, 24th November, 2011

An ageing population and "do-it-yourself wills" will ensure plenty of work for lawyers who specialise in estate litigation in the future. 

With the ageing population in the Gold Coast and Tweed area, a large increase in estate litigation among families can be expected, especially if free will kits are commonly used. 

Don’t forget "where there is a Will, there is a relative". 

Even though property prices have fallen in most parts of this area in recent times, older couples own their homes at the very least which are often well positioned and quite valuable. 

This issue would not raise too many eyebrows but there is a second dynamic which will probably ensure that lawyers are very busy over the next 15-20 years. 

It is the growth of do-it-yourself-will-kit use, which will ensure that many families are locked into expensive litigation for many years to come. 

Most people insist that they want everything to be kept simple when creating a Will. Unfortunately, family dynamics are far from simple. Suffice to say that if you are a member of a family of someone who has passed away or you were financially dependent upon the deceased, you may well have standing to contest the estate. 

There is also the strong possibility that if someone used a do-it-yourself Will kit, it could well be rendered invalid due to any number of non-compliance issues with the relevant legislation. 

The only way to properly ensure that your estate passes in accordance with your wishes is to have a properly drafted and executed Will which has been prepared by lawyers experienced in this area of law. 

Part of this process is also obtaining specialist advice in relation to possible claims that could be made by various members of your family and making sure that your Will is drafted to take these issues into account. 

Obviously, this cannot be done with simple Wills or Wills which are purchased from the newsagent or given away by insurance companies.

As published in the Gold Coast Sun (24/11/11)

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Updating your Trust Deeds? Check the Appointor Clause! - By Angela Harry - Senior Estate Planning Lawyer

Written on Friday, 18th November, 2011

It seems that everyone is updating their Trust Deeds lately.  The Bamford decision has everyone running to check the distribution clauses in their Deeds and many service providers in this area offer cheap updates for Trust Deeds which are usually available on the internet. 

Amongst all of these changes and updates, we have noticed that one of the most important clauses in a Trust Deed is often overlooked.  The appointor or principal of a Trust is usually the person who controls the assets of the Trust and can remove or replace trustees and even appoint other people or entities to replace them as the controlling person or entity of the Trust and its assets. 

Given that the provisions in the Trust Deed dealing with the appointor or principal are arguably the most important provisions in the Trust Deed, you would think this would be one of the first clauses looked at by professional advisors.  Unfortunately, this is not the case and we often find that when we go back to the original Trust Deed and its various amendments through the years, the succession provisions of the appointor or principal have not been altered to suit the circumstances of each particular case.

A classic example is where an older Trust Deed has an ex-spouse as the default appointor in the event of the death or loss of capacity of the original appointor.  We had a recent case where the appointor died and his ex-wife of some 20 years previous to his date of death was the default appointor in the original Family Trust Deed.  It had never been amended despite the fact that the appointor had divorced his ex-wife and an appropriate settlement was sanctioned by the Family Court many years beforehand.  Although it was arguable that the ex-wife's interest in the Trust was covered by the Family Court property settlement Orders, there were some anxious moments for the second wife and family of the deceased appointor.  One can imagine the consequences an ex-spouse (or other person) gaining control of significant assets in a Family Trust some 20 years after divorcing the deceased. 

There are many other examples that we have discovered with old Trust Deeds, including accountants and solicitors being nominated as the sole appointor or principal.  Sometimes these people had either died, ceased practising or were in jail!  It is difficult to explain to a client that the significant assets of their Family Trust are actually subject to the control of someone completely independent from them or their family. 

Most Trust Deeds have a succession provision stating that in the event that the appointor dies, his personal representatives or executors will step into his or her shoes as appointor of the Trust.  However, this assumes that the appointor has a current Will as at the date of death (or an appropriate Enduring Power of Attorney in the event of loss of capacity).  It is amazing how many people don't have their estate planning up to date and still have old Wills or Powers of Attorney floating around that are way out of date or, even worse, they don't have any Wills or Powers of Attorney at all! It is often pot luck if someone dies intestate. 

It is a relatively simple process to carefully peruse a Trust Deed and any amendments to ascertain what the position is in the event of the death of an appointor.  This usually also leads to the clients considering their estate planning and making sure that their Wills and Enduring Powers of Attorney marry up with their Trusts and other business structures. 

It is better to be safe than sorry in these matters and raise these issues with your clients to avoid any possible repercussions from family members who may be severely affected by a Trust Deed that is out of date.

Our Wills and Estates team at Attwood Marshall can answer your queries and assist you with this or any other issue you have. Contact an Attwood Marshall Lawyer today on 1800 621 071 or email lbarnes@attwoodmarshall.com.au.

 
 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Relief Awarded under the Contracts Review Act (NSW) – By Lauren Magasdi - Lawyer

Written on Friday, 11th November, 2011

On 2 September 2011, the NSW Court of Appeal upheld the decision of the primary judge  in Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260 to award relief under the Contract’s Review Act 1980 NSW) in respect of a guarantee that was given by two guarantors under pressure from their son.

In November 2006, Milan (the son), through his company, entered into a call option for nine months to purchase a property at Head Street in Forster for $1,330,000 plus GST. With stamp duty, this price exceeded $1,400,000.

In order to purchase the property, Milan asked his parents for financial assistance. His parents, both of Yugoslavian nationality, were only able to speak communicative English, or as the primary judge referred to it as ‘simple’ English.

The parents gave a short term loan to the company (a loan using their own property as security) which enabled a second mortgage over the property. Milan’s parents advised Milan that they had no assets and were unable to meet any obligations under the loan but said “we can help you by putting our name on the bank document if it helps you get the loan, but only if our obligation ends in three months". Milan stressed to his father that it was a “big problem” and they [the parents] would need to lend him the money for the property in Forster.  Following on from the comments above, Milan said that they would need to sign some documents and see a solicitor.  A lawyer who spoke Serbian explained the documents to the parents in the presence of Milan.

The findings by the Court of Appeal:-

  1. The Primary Judge found that Milan had pressured his parents to obtain legal advice and sign the documents
  2. There was no evidence that Fast Fix Loans Pty Ltd had any  insofar as  Fast Fix Loans Pty Ltd made no enquiries as to the financial position of the parents and was only concerned about that of the security in the case of a default.
  3. At the time that a deed of loan and mortgage was provided to the parents, the parents only had a general understanding of the document, nor were they aware of the interest rates associated with the mortgage.
  4. The primary judge incorrectly applied the principles relating to borrowers in assets lending cases to guarantors.
  5. There was ample basis to conclude that the contracts were unjust and thus, relief to be granted against the Appellant (Fast Fix Loans Pty Ltd)
  6. Reference was also made to the high interest rate and said it may be a significant contributor to the injustice of a loan if the lender has not ensured that an unsophisticated borrower has received an explanation that brings home to the borrower the reality of how the interest rate, including any compounding, actually operates.

 

This case stresses upon lenders, the need to make enquiries of a guarantor’s ability to meeting their obligations irrespective if they have received legal advice. It should not be concerned only with security available in the case of a default.

Our Commercial Litigation team here at Attwood Marshall can answer your queries and assist you with this or any other issue you have. Contact an Attwood Marshall Lawyer today on 1800 621 071 or email jhuckstepp@attwoodmarshall.com.au.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

How will our family business be taken into account in property settlement? By Abbi Golightly - Accredited Family Law Specialist

Written on Friday, 11th November, 2011

An interest in a business, owned by either party to a relationship personally or through any form of corporate entity, trust or partnership structure, is an asset which necessarily needs to be considered when discussing and reaching agreement as to the division of assets of the relationship.   Whilst ownership of the business is usually not a substantial dispute, the value to be attributed to the business is.

Parties can either agree upon the value of a business or have it valued by a qualified valuer.  In the case of a business, the valuation is undertaken by a forensic accountant.  The valuer will inspect the books and records of the business and often attends at the place of business to look at fixed assets and generally get a feel for the business’s day to day operations.

How then, is the value of a business arrived at?  The purpose of the valuation is to have “fair market value” attributed to the business.  Fair market value is that price which a willing but not anxious buyer, at arm’s length, being informed with adequate information, will pay for the business.  The forensic accountant is likely to adopt either an asset based approach or an earnings based approach to arrive at fair market value.

Earnings based approaches are usually either a Discounted Cash Flow Method wherein the predicted cash flow of a business is considered and a discount applied to arrive at a value based on predicted income.  This methodology is best for “start-up” businesses.  The alternative methodology is the Future Maintainable Earnings method whereby the estimated future earnings of a business is capitalized using an appropriate investment rate of return.  This method considers past performance which can be adjusted for any unusual amounts or transactions appearing in financial records which are not likely to occur again in the future.  The investment rate or capitalization rate is arrived at after considering the business “risk”, the competition which exists and industry wide norms and conditions.  This valuation method is best for well established businesses with a history of stable earnings.

Finally, asset based approach arrives at a valuation based on the realizable value of the identifiable assets of the business and is best used where value of assets of the business can be readily determined and adopting this method would result in a valuation higher than any of the earnings based approaches.

The above discussion just touches upon the many methods of business valuation which are available to a forensic accountant.  Of course if during the conduct of your property settlement matter we consider it appropriate to engage the services of such an accountant, we have many referral sources that we can put you in touch with.

To discuss your property settlement matter further, including any issues to do with the valuation of your business or a business operated by your former partner, please contact us to make an appointment.

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 
 

Do you own Strata Title premises in NSW & want to swap your car space with another owner?

Written on Friday, 4th November, 2011

This question is best answered using a practical example

  • All of the lots in a strata scheme have a separate car space in the basement which is identified on the strata plan as being part of their respective lot.
  • The strata scheme has 4 lots and each lot has a separate car space which is shown on the strata plan as forming part of each lot. 
  • The owners of lots 1 and 2 wish to swap ownership of their car spaces.

 

What you need to do:

1. A registered surveyor should prepare a strata plan of subdivision to create 2 new lots (ie lots 5 and 6)

  • Lot 5 being the whole of the former lot 1 excluding its car space and including the car space of the former lot 2
  • Lot 6 being the whole of the former lot 2 excluding its car space and including the car space of the former lot 1

 

2. The strata plan of subdivision requires the approval of the following parties:

  • The Council or an Accredited Certifier.
  • The registered proprietors of lots 1 and 2
  • Any party with a registered interest in lots 1 and 2 eg. a mortgagor (your financing bank), lessor or caveator

 

3. The consent of the Owners' Corporation is not required. However the Certificate of Title for the common property should be produced at Land and Property Information NSW (LPI) to permit registration of the plan.

4. If either of the lots concerned is owned by the original developer, then a certificate from the Owners Corporation should be furnished with the plan, certifying that either:

  • The initial period has expired or
  • That the original developer still owns all lots in the scheme.

 

Note: If the initial period has not expired and at least one lot has been sold then a certified or office copy of an order made under section 182 of the Strata Schemes Management Act, 1996 authorising the registration of the plan should be lodged with the plan.

5. Lodge plan for registration at LPI (applicable lodgement fees will apply).The Certificates of Title for lots 1 and 2 and the Common Property should be produced in LPI to permit registration of the plan

6. Registration of the plan results in the desired car spaces forming part of the relevant lot. However as the plan does not resolve the ownership of the car spaces, reciprocal transfers from each of the lot owners of their former car spaces should be lodged with the plan.

Note: Transfers will require marking by the Office of State Revenue prior to lodgement in LPI

7. Any existing mortgage on the title of the two lots would also need to be addressed.

Less desirable alternatives to this would be for the lot owners to lease their car spaces to each other or to create reciprocal easements over each other’s car space. Neither of these actions would result in a change of ownership of the car spaces.

A resolution of the Owners Corporation is not sufficient to swap the car spaces and the Owners Corporation cannot create a By Law to swap car spaces that are parts of lots.

Our Property and Commercial team here at Attwood Marshall can answer your queries and assist you with this or any other issue you have with regard to your Strata Title Ownership. Contact an Attwood Marshall Lawyer today on 1800 621 071 or email cmartin@attwoodmarshall.com.au.

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 
 

Attwood Marshall Lawyers congratulates Lauren and Andrew on their recent Engagement!

Written on Friday, 4th November, 2011

CONGRATULATIONS ON YOUR ENGAGEMENT

Lauren Magasdi our Commercial Litigation Lawyer has been with Attwood Marshall for the past three years. Lauren has been representing our Telco scams and EI class actions as well as specialising in general commercial litigation claims and disputes. 

Andrew popped the big question on Tuesday, 1st November and they plan to wed next year in September.  

Congratulations Lauren and Andrew. Here's to wishing you lots of wonderful moments together now & always. From your Attwood Marshall family - Happy Engagement!

 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 
 

Safety switches & smoke alarms – Are you currently complying? By Jacinta Bennett - Property Paralegal

Written on Friday, 4th November, 2011

Did you know every householder in QLD and NSW has a legal responsibility to keep their home safe, including the way it uses electricity? Or, if you own or run a business you are responsible for the electrical safety of employees and everyone else on your premises?

QLD:

In Queensland it is an offence under the Fire and Rescue Service Act 1990 if a compliant smoke alarm is not installed and under the Electrical safety regulation 2002, all domestic residences constructed since June 1992 must have an approved safety switch installed.

It is the seller’s obligation to notify the buyer, who has entered into a contract, whether compliant smoke alarms and safety switches are installed in the dwelling on the land. This can be disclosed in the electrical safety switch and smoke alarm section in the standard Queensland REIQ Contracts. If the Contract you have entered into is not the REIQ contract, then the seller’s representative will need to either insert a suitable clause in the contract or ensure written disclosure is made some time before the buyer takes possession. If notice is not given then the seller may incur a penalty of $500.00.

If it is noted on the Contract that a safety switch has not been installed then the buyer of the property must, within 3 months after the date of possession, have an approved safety switch installed for the general purpose socket-outlet (power points). Failure to do so may incur a penalty of $1,500.00.

NSW:

It has been noted by the NSW government that if you haven’t done so already, you should “seriously consider” installing an electrical safety switch. While it is mandatory in QLD it is only a consideration in NSW. In relation to the smoke alarms owners must have smoke alarms installed and it is an offence not to comply, remove or interfere with them.

In NSW a Contract is not binding unless it has the 2005 printed page with the warning of smoke alarms attached.

* If you already have a safety switch it is recommended that you test it every 3 months and if it fails get it checked by a licensed electrician. 

* Smoke alarms should be tested monthly and the battery should be replaced annually.

Please contact us on 1800 621 071 if you require any further information in relation to the disclosure required to sell your property.

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 
 

Managing your child support arrangements - By Abbi Golightly - Accredited Specialist in Family Law

Written on Friday, 28th October, 2011

It is expected that, after separation, parents will continue to support their children financially, irrespective of the changed family arrangements.  Indeed Centrelink requires anyone in receipt of a parenting payment to pursue the other parent for payment of child support and if they fail to do so, their payments will be reduced accordingly.

The payment or receipt of Child Support does not have to be a nightmare of paperwork and dealing with government agencies, such as the Child Support Agency.  The Child Support Agency, when asked to do so, will apply a formula to your circumstances, taking into consideration the percentage of care with each parent and their respective income and arrive at a monthly amount payable/receivable. 

Whilst in some circumstances it is appropriate and necessary for the Child Support Agency to be responsible for the assessment of and collection of child support, it is possible for parties to reach a private agreement about the amount of Child Support to be paid by them or received by them and also to have this agreement formalized in a way that gives both the paying parent and receiving parent certainty into the future about their child support matters.

The most binding way to document a private agreement for child support is by way of Binding Child Support Agreement which, once entered into, is lodged with the Child Support Agency who thereafter will only issue assessments in accordance with the terms of the Binding Child Support Agreement.   Due to the nature of a Binding Child Support Agreement, there are certain formalities which are required to be included in the drafting of the document and all parties are required to receive independent legal advice in relation to the nature and effect of the agreement on their rights and the advantages / disadvantages of entering into the agreement.

The Courts have been asked to challenge the validity of Binding Child Support Agreements on a number of occasions since the ability to enter into them and overwhelmingly the attitude of the Court is to uphold these agreements except in very strict and limited circumstances.

If a Binding Child Support Agreement is not appropriate for your circumstances there are less formal ways of documenting private arrangements for the collection / payment of child support including what is known as a Limited Child Support Agreement.  Limited Child Support Agreements are able to be terminated by either party on notice to the other, leaving parties able to enter into another Limited Child Support Agreement, a Binding Child Support Agreement or reverting back to the Child Support Agency assessment process.

If you wish to discuss issues relating to your obligation to pay child support, your right to receive child support and how to best document any private agreement reached in relation to child support, please contact us to make an appointment to discuss these matters.

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Are you required to enquire whether a vehicle is roadworthy before driving? By Chris Clarke - Partner

Written on Friday, 28th October, 2011

The NSW Court of Appeal has recently examined a case where there was an issue as to whether a driver should examine a vehicle for its roadworthiness before driving it.  In a case involving a single vehicle a decision was made that the plaintiff should drive the defendant's vehicle because the defendant was too intoxicated to drive.  The plaintiff drove through a roundabout, lost control of the vehicle and collided with a telegraph pole because the tyres on the vehicle were completely bald.  The Court of Appeal decided that it is the responsibility of the owner of a defective vehicle to ensure that it is not driven.  In circumstances where the owner knows that the vehicle is defective, the owner has an obligation and a duty of care to prevent another person from driving the defective vehicle, not just warning them of the defect.  If there is no reasonable cause to suspect a defect in the vehicle, the driver is not required to ask the owner whether the vehicle that they are about to drive is roadworthy. 

The case is reported as follows:  Harmer -v- Hare [2011] NSWCA 229.

Attwood Marshall Lawyers has Law Society Accredited Specialists in Personal Injury Law in Queensland and New South Wales.

Attwood Marshall offers a no win no fee service to all personal injury claims.  This means that everyone who is entitled to compensation has access to expert lawyers. 

For a free no obligation consultation please contact 1800 621 071 or email info@attwoodmarshall.com.au.

 
 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Australia's Work Health & Safety and Worker's Compensation - Report released by the Australian Government

Written on Friday, 21st October, 2011

A report has been released by the Australian Government on the comparative performance monitoring of Australia's Work Health & Safety and Worker's Compensation systems for 2009/2010.  The full report can be viewed at www.safeworkaustralia.gov.au.  The report outlines the following findings: 

  • There were 194 compensated fatalities recorded in Australia for 2009/2010.

 

  • Each year 13 out of every 1000 workers continue to be injured seriously enough to require a week or more off work.

 

  • 75% of injured workers are successfully returning to work within 8-10 months of sustaining their injury.

 

  • The sectors of the economy with the highest incidence of injury and disease are transport and storage, manufacturing and agriculture and forestry and fishing.

 

  • Australian worker's compensation schemes are spending more than $7 billion in payments, around 56% of which was paid direct to injured workers in compensation for the injury or illness and 22% was spent on medical and other services which accounts for approximately 78% of all the payments made.

 

Safework Australia is continuing to work to reduce injury rates throughout Australia.

If you are having problems with a worker's compensation insurer for any reason, including payment of medical expenses, weekly benefits or lump sums, you should contact Attwood Marshall on info@attwoodmarshall.com.au or 1800 621 071.

Alternatively, complete our online enquiry form and we will contact you. 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 
 

Importance of REIQ Annexure to PAMD Form 22a - Your Right to Commission depends on it! By Jeff Garrett - Legal Practice Director

Written on Friday, 21st October, 2011

We have previously considered the issue of the importance of real estate agents properly completing their PAMD Form 22a's:-
 

Entitlement to Commission - Are you the effective cause of the Sale?

Make sure you complete your PAMD Form 22a - Your commission may depend upon it!

Another area that is often overlooked is the right to Commission where a Contract is terminated either through the wilful default of the purchaser, by mutual agreement or where it is terminated within the cooling off period.

The Schedule document which is issued by the REIQ accounts for pages 5-9 inclusive of the PAMD Form 22a.  Importantly, the suggested Schedule and form from the REIQ is not a prescribed form under the PAMDA legislation or regulations.  However, if real estate agents wish to protect their right to commission in the event of a Contract falling over for whatever reason, it is very important that they attach the REIQ Schedule and have the sellers initial each page of the document.  Pages 8 and 9 of the REIQ Schedule set out terms and conditions of the appointment of the agent and the agent's entitlement to commission.  It also sets out the agent's entitlement to commission in the event of the Contract being terminated for whatever reason (this usually results in the deposit being forfeited to the sellers and, if this form is not completed, the agent may miss out on their entitlement to commission which is usually payable from the deposit monies).

There has been judicial authority that states that failing to annex the REIQ Schedule (and in particular pages 8 and 9 of same) is not fatal to a claim for commission - see the decision of Decker -v- Anderson and Griffiths [2008] QDC 283.  However, that case was not specifically on point with respect to an agent claiming commission in the event of a Contract being terminated or rescinded by mutual agreement.  The provisions of pages 8 and 9 of the REIQ Schedule specifically provide the agent with the contractual terms to ground a claim for commission in the various circumstances set out in paragraphs 2 and 12.

It is important to note the agent's entitlement to a termination penalty under clause 12 of the terms and conditions.  This entitles the agent to a 50% share of the termination penalty in the event that the purchaser pulls out of the Contract in accordance with the cooling off provisions.

Of more importance to the agent, however, are the entitlements set out under paragraph 2.1:

          (2)   The client defaults under the Contract of Sale and that Contract is terminated by reason of or following that default; or

          (3)   The Contract of Sale is not completed and the whole or part of the deposit paid is liable to be forfeited; or

          (4)   The Contract of Sale is terminated by mutual agreement of the client and the buyer.

In these difficult economic times when the market is clearly in the doldrums, it is extremely important that real estate agents do whatever is necessary to preserve their claim for commission in the event that a Contract is terminated.  This is particularly relevant in this market when there are a large number of Contracts that are being terminated for various reasons. Make sure you annex the REIQ Schedule and have the client initial all 9 pages!

If you have any questions or queries in relation to any commission disputes or any other issues, please do not hesitate to contact Christine Martin, our Property & Commercial Department Manager on 07 5506 8245 or cmartin@attwoodmarshall.com.au.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers (Gold Coast based Lawyers), we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!