by Katrina Brown | Mar 6, 2013 | Estate Litigation, Powers of Attorney and Estate Planning, Succession Law, Wills
Leaving an inheritance: I don’t want to give my child anything…. is that okay? The answer, generally, is no. However, there are many strategies which can be implemented today which can significantly limit the opportunity for your child to receive anything from you.
Clients ask us this question when they have one child who is successful, whereas the other siblings may have substantially less. Other times where this question arises is where one child has been particularly difficult or distant, and the parents have lost contact or do not wish to be leaving an inheritance to the child for their inappropriate conduct. We have also seen this question arise in circumstances where a child has children of their own which they do not support, and our clients (being the grandparents) want their estate to pass to the benefit of their grandchildren.
Setting aside the reason for this decision, there are practical solutions – albeit the solutions may not flow directly from your Will.
For example, did you realise that superannuation does not pass as an estate asset? When you die, your superannuation is not disposed of by your Will. Most people do not realise this. The Superannuation Fund Trustee decides who receives your superannuation benefits. Some commercial funds, and all self-managed funds, allow you (as the member) to “bind” the Trustee to pay the benefits in a certain manner, but this manner must still comply with the terms of the Superannuation Legislation. Generally, the superannuation must pass to a spouse, child, dependent or your estate. There are, therefore, strategies which can be implemented to circumvent your estate.
Another possible solution is the foundation of a Discretionary Trust to hold your assets. Essentially, you “gift” your assets to a Trust, and when you pass away the assets do not belong to your estate. They are disposed of within the terms of the Discretionary Trust. You can nominate your successor to manage the Trust (referred to as a Trustee and/or Appointor) – and that person (or persons) then determines how the assets are distributed.
Another option, which carries a cost which may be a disincentive to many, is to create “joint tenancy” over property with the preferred beneficiaries – which means that the property passes automatically to the survivor(s) on your passing. This is definitely not one of my preferred options, but it is an option.
There are many other possibilities, and each circumstance is different. Therefore, we welcome you to contact the office to discuss the possibilities available to you and your family to reach your estate planning objectives, including, but not limited to, withholding provision to any one or more of your family members.
We welcome you to contact our team on (07) 5574 3560 or email us info@nautiluslaw.com.au. Thank you for considering Nautilus Law Group.
Submitted by: Katrina E. Brown BA JD ATIA TEP SSA
by Katrina Brown | Mar 5, 2013 | Commercial Law, Credit Management Advice
Every business has one (or more) debtor(s) which drops off the radar and does not settle their bill. Clients ask us, is it worth pursuing a debt under $500?
Our answer varies depending on the nature of the debt. For instance, if your business has a credit agreement which provides an “indemnity clause” (which means that if your debtor does not pay their bill, you are able to as a matter of right recover reasonable mercantile and legal fees), then our answer is generally “yes.” If, however, that debt is highly contested by the debtor (for example, they say you sent a screw, and they ordered a hammer), then the answer is going to be “no.”
This is where the benefit of having a mercantile agency, and law firm working in concert can give you maximum benefits.
Nautilus Law Group refers clients to Kemp Petersons for standard “debt recovery” – that is, you have a debtor and you think it just needs a few phone calls and it will be resolved. Kemp Petersons works on a “no win-no fee” basis – so if they do not recover, you can refer the matter back to us.
If we then take it on, we assess the file for its strengths and weaknesses, and advise you whether its worth perusing the debt. We can offer simple, low cost options, such as a “solicitor’s demand” – which is the step before taking the matter to court. A debtor’s response to a solicitor’s demand can help us understand why they are not paying the debt. Depending on their response, we may make a number of recommendations (we don’t want to give away our secrets in an article, so you will have to be a client to find out what those recommendations will be).
Our systems are all transparent, and you will be assigned a “client log on” to view your matter each step of the way. This log on gives you access to your file 24 hours a day, 7 days a week.
So, in sum, is pursuing a debt of $500 worth it? Our answer – you will not know unless you try and between Kemps Petersons and Nautilus Law Group, we can offer a solution which takes most of the risk out of asking.
As a heads up, though, we recommend you:
- Ensure you have the right Terms and Conditions, incorporating default provisions if a debtor fails to pay, security rights (so you have something to claim as yours if they do not pay), indemnity rights as to costs associated with chasing the debtor, and interest provision for overdue monies;
- You need to know your debtor! This one of the most common mistakes we see – you need to make sure you have the right debtor signing credit agreements and being invoiced. This may seem logical, but we see it too often that credit agreements are reached between clients and “shell companies,” but the products are shipped to a “trading company.” Wherever possible, obtain directors guarantees.
- Chase your debtors immediately. If your debtors know you are serious, they are less likely to become delinquent. A delinquent debtor is either a habitual debtor (knowing the tricks of the trade in terms of frustrating their suppliers) or they are non-financial (which means if you wait too long, you are going to be chasing a Liquidator or Bankruptcy Trustee for payment).
- Ask for help!
So a thought to remember, the squeaky wheel gets the oil!
We welcome you to contact our team on (07) 5574 3560 or email us info@nautiluslaw.com.au. Thank you for considering Nautilus Law Group.
Submitted by: Nautilus Law Gropu
by Katrina Brown | Mar 2, 2013 | Business Strategies
National Privacy Principles: Is your company or business collecting personal information about your existing or potential clients? Personal information is defined in section 6 of the Privacy Act 1988 (Cth) as:
“Information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”
But what does it mean for an individual’s identity to be “apparent”, or “reasonably” ascertainable from the information collected?
In 2002, the (then) Privacy Commissioner, released a statement as follows:
“Identification is the action of being identified, of linking specific information with a particular person. An individual’s identity has a degree of fluidity and is likely to change over time. The extensive linking of different information about an individual may restrict or limit this fluidity …
Identification can potentially relate a wide range of elements of an individual’s identity. In practice, identifying an individual generally involves focusing on those things that distinguish that individual from others including, legal name, date of birth, location or address and symbolic identifiers such as a driver’s licence number.”
Whether information can readily identify an individual is greatly dependent on the situational context. For example, the disclosure of gender, ethnicity and the information that the individual suffers a rare medical condition, has been considered to be enough to identify a person.
Generally, information such as a full name, address, date of birth or even an email address can be considered information that makes a person capable of being identified.
Most businesses collect this information on their websites, through order forms or when a potential customer signs up to receive their newsletter. It is important for businesses to understand their obligations when collecting, and dealing with personal information. While there are some exemptions to compliance with the Act, it is good practice for businesses to comply with the Act and the National Privacy Principles when conducting business, as it encourages customers to feel comfortable sharing personal information when interacting with your business.
The National Privacy Principles (NPPs) are the standards of privacy to which private organisations (as opposed to government agencies) must adhere when collecting and holding personal information.
The 10 NPPs are summarised as follows:
1. Collection – This NPP describes how an organisation should act when collecting personal information. Restrictions include:
a. The information collected must be necessary for one or more of the functions or activities of the organisation – for example, for sending of a newsletter or for posting goods purchased by the customer;
b. The information can only be collected by lawful and fair means and not in a way that can be considered unreasonably intrusive;
c. The organisation collecting the information must take reasonable steps to make the individual aware of:
i. the identity of the organisation and any contact information;
ii. the purposes for which the organisation is collecting the information;
iii. the fact that the individual is entitled to access the collected information;
iv. to whom the information may be disclosed; and
v. the consequences (if any) of failure to provide the information – for example, full services may not
be able to be provided without all information;
d. the organisation should, as far as reasonable and practicable, only collect personal information directly from the individual it pertains to.
2. Use and Disclosure – This NPP provides guidelines as to how personal information can be used and disclosed. The obligations can be summarised as follows:
a. The information must only be disclosed for the primary purpose for which the information was
collected, unless:
i. the secondary purpose for collection is related to the primary purpose; and
ii. the individual would expect the organisation to disclose the information for the secondary purpose; or
iii. the individual provided consent to the disclosure; or
iv. if the information is not of a sensitive nature and the secondary purpose is direct marketing and the
individual has not declined such communication, and the organisation provides an ‘unsubscribe’ facility; or
v. where the information is related to health and is necessary for research or statistics pertaining to public
health and safety; or
vi. disclosure is necessary to prevent a serious and immediate threat to the life of an individual, the public or
public safety; or
vii. the organisation reasonably suspects that an unlawful activity has been carried out and discloses the
information as part of its investigation; or
viii. the law authorises disclosure or use of the information.
3. Information Quality – The organisation must ensure that the information is maintained complete and up to date.
4. Data Security – The organisation must do all possible to maintain the security of the information, and prevent any unauthorised use or access.
5. Openness – An organisation must set out in a document its policy on management of personal information, and make this “Privacy Policy” available to any person who requests to view it.
6. Access and Correction – An individual must be allowed access to their personal information (except as otherwise specified under the Standards) and may correct such information if it is inaccurate or incomplete.
7. Identifier – An organisation may not use or make reference to an identifier used by the government as its own reference number.
8. Anonymity – An organisation must, where possible, allow an individual the opportunity to deal with the organisation without having to identify themselves to the organisation.
9. Transborder Data Flows – An organisation cannot transfer information outside Australia only if the external territory is subject to similar legislation regulating the use of information, or where the customer consents to the disclosure.
10. Sensitive Information – Sensitive information cannot be collected except where an individual has specifically consented, where it is required by law or where it is necessary for public health or individual safety. For reference, “sensitive information” includes information or an opinion about an individual’s:
a. racial or ethnic origin; or
b. political opinions; or
c. membership of a political association; or
d. religious beliefs or affiliations; or
e. philosophical beliefs; or
f. membership of a professional or trade association; or
g. membership of a trade union; or
h. sexual preferences or practices; or
i. criminal record; or
j. personal information about an individual’s health or genetic matters.
If you are collecting personal information about your customers you may need to ensure that you are acting in compliance with the National Privacy Principles. If you are unsure about your obligations under these rules, we encourage you to contact our office to discuss your concerns.
Nautilus can help you ensure compliance with that National Privacy Principles through the provision of a Privacy Policy, tailored to suit your business and its uses of personal information. Privacy Policies are not only required by NPP 5, they help instill confidence in customers of your business, as they are able to identify how their personal information will be used when they make it available to you. More and more individuals are being educated about the risks associated with providing personal information online, so it is important that your business has policies in place to address any concerns that your customers may have before they engage with your business.
We welcome you to contact our team on (07) 5574 3560 or email us info@nautiluslaw.com.au. Thank you for considering Nautilus Law Group.
Submitted by: Katrina E. Brown BA JD ATIA TEP SSA
by Katrina Brown | Mar 2, 2013 | Body Corporate Law, Strata/Community Living
The Body Corporate and Community Management (Small Scheme Module) Regulation 2008 (the Small Scheme Module) applies from 30 August 2008, and generally relates to bodies corporate with 2-6 lots and of a predominantly residential nature.
Letting Agents
Complexes applying the Small Scheme Module do not retain letting agents, which reflects on the type of the complex.
Term of engagement of Body Corporate Managers
Under the Small Scheme Module, Body Corporate Managers are retained for 12 months from the date of engagement, or such lesser terms as determined by the body corporate. Managers are, therefore, required to renew terms of appointment on an annual basis.
Meetings
Meetings of the Body Corporate are referred to “annual general meetings” or “extraordinary general meetings.” The meetings may be called as follows:
(1) A general meeting may be called by—
(a) if the positions of secretary and treasurer are held by the 1 person—the person; or
(b) if the positions of secretary and treasurer are held by 2 persons—the secretary or treasurer, if authorised by a resolution of the committee to call the particular meeting.
(2) A general meeting may also be called by a person authorised or required to call a general meeting by an order of an adjudicator acting under the dispute resolution provisions.
Written notice of a general meeting (including the time and place of the proposed general meeting) must be given to the owner of each lot included in the community titles scheme, and if not given personally, must be sent to the owner at the owner’s address for service. If an owner changes address, they are required to lodge a Body Corporate and Community Management Form 8 (Information for body corporate roll) with the Body Corporate. If an owner fails to do so, it is at their own peril.
Seal
In Queensland, a Body Corporate will affix the seal to any document, deed or instrument or in accordance with the delegation given to the Body Corporate Manager by the Body Corporate, and the Small Schemes Module requires:
(1) The body corporate’s seal must be kept in the custody directed by the body corporate by ordinary resolution.
(2) The body corporate’s seal may be used only as directed or authorised by ordinary resolution.
However, if a body corporate has not resolved how the seal is to be used, the seal may be attached to a document in the presence of the secretary or treasurer and 1 other person.
If you have any questions about the structure or requirements of Queensland Body Corporate matters, contact our team on (07) 5574 3560 or email us info@nautiluslaw.com.au. Thank you for considering Nautilus Law Group.
by Katrina Brown | Mar 2, 2013 | Body Corporate Law, Strata/Community Living
Body Corporate Repairs and Maintenance – who pays for what?
Has an owner requested your Body Corporate to do repairs and maintenance, or compensate the owner for repairs made? There may be fine distinctions between what constitutes an owner’s obligation, and what otherwise falls within the catchment of a Body Corporate responsibility.
Generally speaking a Body Corporate is responsible for a repair relative to common property. The Body Corporate and Community Management (Standard Module) Regulation 2008 (“the Regulations”), Section 159, provides:
“The body corporate must maintain common property in good condition, including, to the extent that common property is structural in
nature, in a structurally sound condition.”
A Body Corporate’s obligation to repair and maintain common property, extends as well to structures bordering the common property, such as railings, fencing, doors, windows and associated fittings separating a lot from the common property. There are exceptions to the above; however, limited.
Utility infrastructure is not necessary a “common property” matter for which the Body Corporate is liable. If the infrastructure is on common property, but solely supplies an individual lot – the owner of the lot is liable. An example of such an infrastructure includes air conditioning units, hot water systems and other devices supplying a utility or service to a lot.
Whilst Body Corporate liability as to “common property” and “boundary” matters are readily understandable, significant ambiguity follows from an incident arising within an individual unit which is traceable to matters associated with common property.
One such example arose in the matter of The Palms Apartments [2009] QBCCMCmr 428 (30 October 2009). In this case, a water pipe burst in the wall of an owner’s bathroom. Both the owner and the Body Corporate disputed responsibility. The Body Corporate argued that the pipe was within the boundary of the lot and was a utility infrastructure (and referred to Section 159 of the Regulations in support of the position that the owner was liable). The owner disputed this argument producing a plumber’s report, which stated that the water pipe did not supply water solely to that unit (referring liability back to the Body Corporate). The adjudicator determined that the dispute related to a utility infrastructure, subject to Section 20 of the Body Corporate and Community Management Act 1997, and held that the pipe was considered “common property” for which the Body Corporate was responsible to maintain. The Body Corporate was required to compensate the owner of the damages arising from the water pipe leak.
The last three years have been brutal on Queensland body corporate owners, in terms of environmental damage and retraction in the property market generally. Following from the storm surges, cyclones and flooding, many Queensland bodies corporate have been dealing with disputes between insurers and owners as to liability for repairs and maintenance. This is especially difficult in circumstances where the bodies corporate are willing to make repairs, but skilled labour and/or services are not available. Owners lacking appreciation for the difficulties faced by Body Corporate Managers and Committees balancing between insurers, assessors, occupiers (including displaced tenants) and alike, cause further delays in processing and can clog the Body Corporate Commissioner’s Office with complaints.
The best strategy to adopt is one of information dissemination to all owners, on an annual basis, at least. The information sheets should identify the difference between common property/body corporate obligations and those associated with an owner specifically. Owners need to be encouraged to adapt proactive efforts at minimizing damages following environmental events, such as seeking approval from insurers to organize their own repairs (even if the repairs need to be paid out of pocket initially by the owner) so as to protect the properties from further and continuing damage.
The Nautilus Team is experienced in a wide range of body corporate disputes, and in the last three years have been engaged in negotiating with insurers, owners and Committees regarding recovery and restoration of properties following the environmental events.
If you require assistance in resolving property damage matters, please do not hesitate to contact our team to arrange a meeting on (07) 5574 3560. Our solicitors regularly travel between Port Douglas, Cairns, Townsville, Mackay, the Sunshine Coast and the Gold Coast offering assistance to Committees along Eastern Queensland.
We thank you for considering Nautilus Law Group.
