Author: bc-lawyers

We have just acted in a tragic matter which raised two issues.  The first as to the need to make a Will regardless of how old you are.  The second as to the need to ensure that the Will has been properly prepared.  As to the first, our client's daughter was an athlete who had received many awards locally and internationally.  It was a devastating blow to the family when at the age of 33, she died in her sleep.  No one could have predicted that event.  Unfortunately, probably due to youthful exuberance and a feeling of invincibility, no proper Will had been prepared.  One therefore led to the inevitable conclusion, that despite one's youth, it is essential to have a Will prepared along with the associated documents such as an Enduring Power of Attorney and an Advance Care Directive.  The second issue which arose was in relation to the informal Will.  That had a date on it. It contained two paragraphs. In the first, in very simple terms it indicated that 70% of the Estate was to go to the will maker's mother and 30% to her father.  In the second paragraph, it indicated that should the mother predecease the will...

“Before borrowing or lending money to or from a friend, decide which you need most – the money or the friend” Disclaimer/use of this information This information is general in nature and does not constitute legal advice.  You must not rely on it.  Legal advice based on your specific circumstances should be sought by you. Understandably, many people wish to assist family members or friends with loans from time to time. (“friendship loan”) A friendship loan carries with it significant risk. Our apologies for what may appear to be a negative tone in this information piece. The issues and concerns raised are often seen by lawyers in loan arrangements between family and friends. Too many of these arrangements turn bad. Too many relationships are significantly impacted on or end as a result of someone trying to help a close friend or family member with a loan. They are the sort of arrangements that must be very carefully considered by all involved and independent legal, taxation, accounting, financial planning and Centrelink advice obtained well before agreeing to proceed. Some considerations may include: - Often, the need for the loan is due to the fact that a bank or independent lender will not make the loan. The friend in...

Disclaimer: The contents of this page are for general information only. They are not intended as professional advice and should not be relied upon for any purpose. Any specific situation should be analysed and assessed by a suitably skilled and experienced solicitor, barrister or other suitably qualified professional. Many people or their family, friends and associates trade through a company or are otherwise involved in the company. This may include as a director. Significant changes have been introduced for company directors when resigning. From 18 February 2021, new rules exist regarding the ‘effective date' of: - Resignations that are not notified to ASIC on time; and - Resignations of last remaining directors. These changes are part of ASIC’s continued push to eliminate illegal phoenixing activities. The government has, from 18 February 2021, commenced their new regime in relation to resigning directors The provisions are part of the aim to prevent companies from liquidating, winding up or being abandoned in order to avoid paying their debts. Directors must consider these new laws when planning to resign their position. Changes to the ‘effective date’ of a director’s resignation if notified late If ASIC is notified of a director's resignation more than 28 days after the resignation date, ASIC will now impose an ‘effective...

It is quite common for issues to arise from the purchase of a Used Car. The Australian Financial Security Authority (AFSA) has recently expressed concerns with such sales.  We thought it useful to provide the following tips. They also let you know where you can find more information which is available from the various government organisations who oversee this area. The tips are for dealers as well as consumers. A PPSR SEARCH on the Personal Property Securities Register There is a fee of $2 for a PPSR search. It is especially important when privately purchasing cars, motorbikes and more. The PPSR can tell you if the vehicle you want to buy is safe from possible repossession, or if it has been reported written-off or stolen. AFSA's newest video, available now on YouTube, highlights the key information a PPSR search can provide. We encourage you to access this short video if you are considering purchasing a second hand vehicle privately. To complete a search, you’ll need the vehicle’s serial number, such as a VIN or chassis number, and a credit or debit card for payment. Just do it and you will save possible future anguish. Consumer and Business Services (CBS) The CBS is the South Australian government...

The ACCC has instituted proceedings against Fuji alleging that nine types of Fuji’s standard form small business contracts contain numerous unfair contract terms, including automatic renewal terms, excessive exit fees and unilateral price increases. ACCC Deputy Chair Mick Keogh, explained why the ACCC took action. “We have received a number of complaints from small businesses alleging that some of the terms in Fuji’s contracts have caused them significant financial harm,” Mr Keogh said. “Some of the unilateral variation terms allow Fuji to modify contracts by creating new rights and obligations, including increasing prices, without notifying its customers and without giving them any corresponding right to negotiate or reject.” “The ACCC will argue that the unfair terms in these contracts cause a significant imbalance in the rights and obligations of Fuji and the small businesses they contract with,” Mr Keogh said. “This court action by the ACCC should prompt all other traders in the printing support industry to review their standard form contracts and make any necessary changes to remove unfair contract terms." The ACCC is seeking declarations that the terms in the existing contracts between Fuji and its small business customers are unfair and therefore void, and an injunction to prevent Fuji from relying on these...

The Parliamentary Joint Committee’s Fairness in Franchising report revealed a range of problems in the franchising sector. Franchising regulation needs reform to restore confidence in the sector. The Australian Government has now prepared its response to the Parliamentary Joint Committee’s 2019 report. The Australian Government will: double the penalties that apply for breaches of the Franchising Code.strengthen dispute resolution options by introducing conciliation and voluntary binding arbitration. Furthermore, the functions of the Franchising Mediation Adviser will be incorporated into ASBFEO (Australian Small Business and Family Enterprise Ombudsman) to improve the efficiency of dispute resolution assistance and make it clearer that ASBFEO can assist with franchise disputes.improve disclosure relating to supply arrangements, marketing funds.strengthen the ability of franchisees to exit the agreement before the end of the term and increase disclosure of end-of-term arrangements for goodwill. The Government will balance the rights of franchisors and franchisees to facilitate and negotiate an early exit from a franchise agreement.to strengthen franchisees’ rights when a demand for significant capital expenditure is made.introduce a public register of franchisors to increase transparency in the sector.develop a franchising website to make it easier for both franchisors and franchisees to access information and support.prohibit franchisors unilaterally imposing significant capital expenditure on franchisees during...

Many articles talk of the complex nature of relationships that lead to blended families. Studies suggests that 60 percent of marriages involving children from a previous marriage end in separation or divorce. This is double that of the overall percentage of first marriages[i]. Blended families have many positive and loving attributes. They can also create complicated estates. To minimise future disputes, it is important seek experienced and professional advice regarding binding financial (“pre-nuptial”) agreements and estate planning. Pre-nuptial agreements may protect assets if the relationship breaks down. A Will is the simplest way to lay out how you want your assets to be distributed upon you passing away. Furthermore, a trust fund can (in your will or during your life) also be set up to pass assets to your children or your stepchildren upon your death[ii]. Whilst this all can sound complicated; it need not be. We have a dedicated, caring, experienced team here at Belperio Clark who are committed to help you navigate positively through these challenges. Please feel free to contact us on 8212 1322 to speak to one of our team. [i] Meleen, Michele, "Blended Family Statistics", Love To Know: Family (Webpage, 2020) <https://family.lovetoknow.com/co-parenting/blended-family-statistics> [ii] Omier, Emily, "Blended Family Estates:...

We have previously mentioned how important it was to make a Will and to keep it up to date.  In earlier blogs we have mentioned celebrities such as Aretha Franklin and Hugh Hefner being involved in litigation as to their estates.  In particular, Aretha Franklin is reported to have died without making a Will or preparing a trust in relation to her large estate, reportedly in excess of $100 million.  Some of the other celebrities who are also stated to have not prepared a Will before their death are Prince (57 years old at time of death), Amy Winehouse (27 years old at time of death), Bob Marley (36 years old at time of death), Jimi Hendrix (27 years old at time of death), Sonny Bono (62 years old at time of death), Kurt Cobain (27 years old at time of death).  In all those cases, litigation ensued and some are still continuing to date, many years after the celebrity's death.  It will have been noted that there is current litigation in the Supreme Court of South Australia as to the Estate of SA businessman Liu Hongtao.  It is alleged that the estate is worth approximately $30 million.  The parties involved...

Medical professionals have a duty of care to patients to ensure their safety and well being. A case of medical negligence happens when treatment falls below an acceptable standard. The negligence can be by omission i.e. failure to do something, or commission, i.e. doing something that caused injury or harm. If standards are not met, you may have a claim. How to prove medical negligence? Where the treatment you have received has fallen short of an acceptable standard, you may be entitled to compensation. To prove medical negligence has occurred, you must prove that the treatment received fell below the standard of care and skill that a reasonable professional would have provided in the same circumstances. It must also be shown that your injury would have been avoided if your care had been appropriate. Normally this is done by getting an opinion from another doctor in the form of a written report. Making a medical negligence claim If you think you have been hurt by inadequate medical advice or treatment, then talk to us about making a claim for medical negligence. You might think taking legal action is stressful and expensive but we can take care of things and help you on a No Win No Fee...

An article in today’s Advertiser has revealed a soon to be launched website that aims to streamline divorces and help divide property between separated couples, in a bid to reduce legal fees and assist parties to remain amicable. At Belperio Clark, we are committed to helping clients achieve outcomes in respect of both property and parenting matters in the quickest, easiest and most cost effective way. However, a ‘one size fits all’ approach is fraught with danger, and may lead to unsatisfactory outcomes for many. Each family’s situation in the midst of a separation is different, and needs to be handled with care and attention. The upcoming website appears to have been constructed around a database of past Court judgments and settlements, taking into account the separated parties’ assets and circumstances, and comparing them to other couples’ situations and the ways in which those have been dealt with in the Court. It is important to note that family law matters that reach a trial stage and achieve outcomes imposed upon them by a Judge account for approximately only 5% of all family law matters. These matters often include dysfunction, where parties find themselves simply unable to negotiate (with or without the assistance of...

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