June 2019

28 Jun

Posted at 11:46h in Wills & Estates

When preparing a Will, confusion often arises when considering whether to also prepare an Advance Care Directive (ACD) or a Power of Attorney (POA). Each of these documents serves a separate yet equally significant purpose, and are important to have in place for the security that each provide.            A POA is useful in situations where you still have capacity (essentially the ability to understand what you are doing) but are otherwise unable to act for yourself, for example if you are overseas or are in hospital. It gives another person, your Attorney or ‘donee’, the authority to deal with your affairs such as purchasing property or operating your bank account. Nominating an Attorney does not mean you lose control of your affairs, and you can always limit their authority. It is important to have a valid and up-to-date POA document in place to ensure that a Court does not appoint someone to look after your affairs if you ever become incapacitated. If you wish your POA to continue despite your loss of capacity, you need an Enduring Power of Attorney (EPOA).           Alternatively, an ACD allows you to appoint another person to make decisions about your health care and welfare in the event that you become unable to make those decisions in...

21 Jun

Posted at 17:27h in General

Many people find themselves in a situation where there is a judgement debt against them without their knowledge. A judgement debt is an enforceable Court order, and can affect your credit rating. It might be the case that you did not receive the original claim in the post, and therefore were unaware of the proceedings, or it might be the case that you have a reasonable excuse for not having complied with the timeframes or procedures, and have an arguable case against the judgement debt. If you are aware of a judgement debt that has been made against you, it is very important to act urgently and seek legal advice. You may be able to apply to set aside a default judgement if you can prove the following: You have an arguable case on the merits; andYou have a reasonable excuse for not having complied with the rules with respect to filing a defence within the 21 day time limit. A reasonable excuse must be one which illustrates why you could not or did not file your defence on time. There may be many reasons for this, such as not receiving the claim, moving address, are on holiday, an error with respect to the address for service, the claim being posted to a company, agent, or accountant, or otherwise...

14 Jun

Posted at 17:26h in Commercial Law

Earlier this year it was announced that the two remaining locations of Hog’s Breath Café in South Australia were being forced into liquidation. This resulted in outrage from the wider community, with the sudden nature of the announcement causing significant inconvenience and turmoil to employees of the franchise and those who had made prior reservations at the restaurant. In a swift turn of events, Hog’s have announced that they will re-open their doors at Glenelg under new management in hope of reigniting the success that the restaurant chain have known in the past. This incident is a stark reminder that when entering into a franchise, due diligence must be carried out in relation to any legal documents you are signing as well as the Franchise Agreement. A franchisee typically has significant obligations under the agreement in an insolvency event, and those obligations can extend to the individual through personal guarantees. A senate inquiry into the operation and effectiveness of the Franchising Code of Conduct produced a report earlier this year. This report advised that it is vital for a prospective franchisee to obtain ‘professional and informed legal and accounting advice before entering into a franchise agreement or contracts related to a franchise opportunity’. (Parliamentary Joint Committee on Corporations and Financial Services – Fairness in Franchising March...

05 Jun

Posted at 16:16h in Commercial Law

An investigation by the Australian Consumer Watchdog and subsequent interim report by the Australian Competition and Consumer Commission (ACCC), focusing on the warm climate regions such as the Riverland in SA, has revealed concerning practices. These range from disputes over quality assessments to some wine grape growers experiencing wait times of up to 9 months in order to receive payment for their grapes. There is typically a significant disparity between wineries and growers. The ACCC noted that this imbalance is restricting the growth of the Australian wine industry. 4 key points were highlighted in this interim report: Quality assessment - the lack of an objective measure for quality assessment is causing difficulty for growers on delivery. Uncertainty on pricing – the lack of certainty in pricing causes difficulty for growers in managing profitability for their vineyards. The ACCC has recommended implementing indicative pricing for growers. Nevertheless there may be legal ramifications to winemakers by way of price signalling. Long term payments - the Wine Industry Code of Conduct implements a staggered payment method, which takes into consideration both the timing for growers cash flows, and also the timing for wine production after delivery and for orders from retailers and distributors. The ACCC’s report has identified many growers are waiting for periods...

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