Affinity Conveyancing Lawyers Blog

http://www.affinityconveyancinglawyers.com.aublog.atom.xml Affinity Conveyancing Lawyers Blog 2020-04-30T05:58:16+00:00 Affinity Conveyancing Lawyers http://www.affinityconveyancinglawyers.com.au admin@affinitylawyers.com.au IF YOU DIE BEFORE YOUR SPOUSE - IS YOUR CHILDREN'S INHERITANCE PROTECTED? http://www.affinityconveyancinglawyers.com.aublog-view/if-you-die-before-your-spouse-is-your-childrens-79 2019-09-09T14:00:00+00:00 2019-09-09T14:00:00+00:00

Following on from last monthâs article regarding mutual/mirror wills, our Gold Coast lawyers wanted to drill down and provide some further information in this area, so that our clients have a better understanding of the process, and what can (and often does) go wrong when proper and thorough estate planning is not carried out.

Following on from last month’s article regarding mutual/mirror wills, our Gold Coast lawyers wanted to drill down and provide some further information in this area, so that our clients have a better understanding of the process, and what can (and often does) go wrong when proper and thorough estate planning is not carried out. There is an ever increasing number of blended families, and with this increase, comes a wider range of issues that need to be contemplated when undertaking estate planning. Whilst even the most detailed estate plan cannot pre-empt the vagaries of life, what it can do is alert you to a range of issues that could crop up, and allow you to be fully appraised of the various options and avenues that may be available to you in the event that they do arise.   As noted previously, it is quite common for partners to have their wills drawn up leaving their estate to each other if they were to pass away, and then to their children, thinking that this will keep their estate in the family and that their children will be looked after. However, as our recent article highlighted, if your will was drawn up in this way and you were to pass away before your spouse, leaving your entire estate to them, there is a possibility that your spouse could re-partner, and draw a new will leaving their estate (which includes the entirety of your estate) to their new partner or spouse. This means that if they were to pass away your children may not get anything without having to commence a Family Provision Application which is an expensive and lengthy process with no guaranteed outcome. This situation may be easier to understand in diagram format:  <img style="vertical-align: middle;" src="/images/editorimages/newsletter_graphic.png" alt="" width="400" height="349" />  <img src="/images/editorimages/newsletter_graphic_2.png" alt="" width="150" height="204" /> As noted above, there may be avenues available to children in these circumstances to make a claim for provision against the estate, however there are strict timing and eligibility issues which need to be satisfied, and the process can be expensive and drawn out. In a 2013 Supreme Court case, mirror wills were executed by the deceased and his first wife, leaving their entire estate firstly to each other, and if they did not survive, then equally to their children.  However, after receiving the entire estate upon his wife's death, the remaining spouse entered into a new relationship and made a new will which left his entire estate to his new spouse and nothing to the children. After he passed away, his son commenced proceedings amongst other things, seeking a declaration from the Court to enforce the original wills made by the parties which stated that after both passed away, the estate was to go equally to the two children of the marriage. However, the Court struck out his claim and determined that there was no agreement between the deceased and his first wife not to change or revoke their wills, so unfortunately, the son missed out on receiving any inheritence. Forewarned is forearmed, or so they say, and it is for this reason that our experienced wills and estate lawyers in our Runaway Bay office want to raise awareness of these types of situations, and work with our clients to arrive at a solution which takes into account all of your individual circumstances and requirements to ensure that your testamentary intentions are accurately documented. To discuss your  individual estate planning needs or if you require assistance in the administration of an Estate, please do not hesitate to contact our Gold Coast team on<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> (07) 5563 8970 </a>or email us at<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> admin@affinitylawyers.com.au</a>. THINGS YOU NEED TO KNOW IF SELLING/BUYING A BUSINESS WHICH OPERATES UNDER A RETAIL SHOP LEASE http://www.affinityconveyancinglawyers.com.aublog-view/things-you-need-to-know-if-sellingbuying-a-80 2019-09-09T14:00:00+00:00 2019-09-09T14:00:00+00:00

When you are considering buying or selling a business which is currently operating under a retail shop lease, it makes sense that the transaction would necessarily include the assignment or transfer of the retail shop lease from the existing business owner to the incoming purchaser.

When you are considering buying or selling a business which is currently operating under a retail shop lease, it makes sense that the transaction would necessarily include the assignment or transfer of the retail shop lease from the existing business owner to the incoming purchaser. Our lawyers have previously written an article on the difference between retail shop leases and commercial leases (which you can read <a href="https://www.affinitylawyers.com.au/blog-view/what-do-you-need-to-know-about-commercial-leases-269">here</a>), however this article is specifically written to provide information on the process to have a retail shop lease transferred to an incoming purchaser, and the steps that need to be taken under the relevant legislation. The Retail Shop Leases Act 1994 (Qld) (RSLA) sets out the process of assigning a retail shop lease, including the pre-assignment procedures, disclosure requirements, legal/financial advice requirements and other miscellaneous general provisions which are applicable to retail shop leases. Generally speaking, the assignment of a lease is required when the existing tenant is unable to complete the term of their lease, and seeks to transfer the time that is left on the lease to another party, for example the incoming purchaser. Essentially, the assignment results in the purchaser stepping into the original tenants shoes for the remainder of the lease rather than the creation of a new lease by way of a sub-lease. Further, most Retail Shop Leases require the prospective purchaser to obtain a Legal Advice Report and a Financial Advice Report prior to signing the lease (if you have less than 5 retail leases under your belt).  Our Gold Coast team have a multitude of experience in this area, and are able to provide you with this Legal Advice Report if needed. It is often a pre-requisite to the assignment of a retail shop lease that the landlord provides their consent to the assignment, and the lease will generally set out the way that this must occur, i.e. the notice period, whether the request must be in writing etc and a failure to do so may invalidate the request and could also be regarded as a breach of the lease. The legislation also outlines specific disclosure obligations which must be conducted in accordance with strict timeframes before an assignment of the lease can be entered into. These disclosure obligations include the current tenant providing a disclosure statement and copy of the current lease to the proposed assignee, at least 7 days before the proposed assignee signs a business sale contract or the day on which the current tenants asks the landlord to consent to the proposed assignment of the lease, whichever occurs earlier. In addition, the landlord must also provide a Lessor Disclosure Statement to the proposed assignment which mirrors the disclosure statement given by the current tenant, however it is provided from the point of view of the landlord and includes further information about the lease, the retail shop premises and the calculation of the rental payments. If the tenants or the landlord’s disclosure statements are provided out of time, then there are ways to rectify the issue, however it is best practice to abide by the timeframes as stipulated, if possible, to avoid possible complications and/or increased costs. As part of the disclosure requirements, the proposed assignee must also provide a disclosure statement to the current tenant, which should be provided before the current tenant seeks the consent of the landlord to the assignment. Upon the current tenant seeking the landlord’s consent to the assignment, a copy of the disclosure statement which was provided to the proposed assignee will also be provided to the landlord. In this way, the preliminary disclosure between all parties (landlord, current tenant and proposed tenant) should provide sufficient information and assurance to the parties in order to proceed with the assignment of the lease. There are various compensation provisions detailed under the RSLA which may apply to circumstances where disclosure statements have been defective/false/misleading, and have resulted in the entry into, or the assignment of a lease.  Requirements to pay compensation in those circumstances include the landlord and can extend to existing tenants as well as the incoming/prospective tenant. Does the landlord have to provide consent? The terms and conditions contained in the lease, and implied terms under the relevant legislation, will determine whether the landlord has the ability to decline to consent to the proposed assignment. Generally speaking, the landlord must not ‘unreasonably withhold’ consent to a proposed assignment, however the test to determine what is ‘reasonable’ is objective, and there is no definitive rule which will apply. Essentially, it will come down to the individual circumstances of the case. We can however look at some of the Court’s historical decisions to see what has previously been considered as reasonable grounds for the refusal of consent, and use these as a guideline when contemplating an assignment of a lease. Such grounds have included: -          the ability for the proposed tenant to be able to fulfil the tenants obligations under the terms of the lease (i.e. are they a ‘respectable and responsible’ person); -          whether a proposed assignment is likely to affect the redevelopment interests in the property that the landlord has, or their capacity to lease out other parts of the property; -          a possible depreciation or reduction in the value of the land; -          where there is a potential negative impact on the commercial reputation of the landlord amongst future lessees. In any event, if you are contemplating entering into a Retail Shop Lease, or you are looking at buying or selling a business to which the RSLA applies, we strongly recommend that you contact one of the experienced property lawyers at Affinity Lawyers today to obtain independent legal advice as to your rights and obligations.  Please contact us today on 07 5563 8970. MIRROR WILLS & MUTUAL WILLS - WHAT IS THE DIFFERENCE? http://www.affinityconveyancinglawyers.com.aublog-view/mirror-wills-mutual-wills-what-is-the-difference-78 2019-07-24T14:00:00+00:00 2019-07-24T14:00:00+00:00

Many people are proactive when it comes to their estate planning matters, and make sure that they have a current and valid will which documents their intentions upon their passing. Couples who are in a relationship and who have children often choose to have their wills drafted to leave everything to each other, and if they do not survive each other, then to their children. This is generally termed a mirror will.

Many people are proactive when it comes to their estate planning matters, and make sure that they have a current and valid will which documents their intentions upon their passing.  Couples who are in a relationship and who have children often choose to have their wills drafted to leave everything to each other, and if they do not survive each other, then to their children. This is generally termed a mirror will. Essentially what this means is that the survivor of them receives everything if one person dies, and then when the second person dies the children will share equally whatever is left of the parent’s estate. However, an aspect of this which is often overlooked or not even contemplated, is that the surviving parent is free to change their will at any time, and if they do so, they may choose not to leave any of the estate to the children upon their passing, leaving the children without any of either parents estate. This area also becomes further complicated if the surviving parent were to enter into a new relationship (whether or not their new partner has their own children or not) thereby creating a blended family.  If they then choose to have a new will drafted leaving their estate to their new partner, the children may also be left without any of either parents’ estate if the surviving parent were to pass away. Often, parties who get their wills drafted in the aforementioned manner are under a mistaken assumption that those wills are somewhat set in stone and cannot be changed.  However this is not the case with mirror wills. It is important that people are aware that a person is generally free to change their will at any time that they like (subject to their testamentary capacity and the absence of any other vitiating factors such as undue influence or duress etc) and there is no requirement that they inform anyone else that they have done so. However, if parties have entered into mutual wills, the process to have a will changed is restricted and generally can only be changed or revoked by agreement.  Our Gold Coast Wills & Estate lawyers have had several clients express surprise upon learning the distinction between the two, and so this article has been drafted to illuminate the difference between mirror wills and mutual wills. WHAT IS A MUTUAL WILL As noted above, a mutual will is not a mirror will. A mirror will is a will which has reciprocal or mirror like terms whereas a mutual will is a legally binding contract between you and your partner. Although Mirror Wills may be Mutual Wills, there needs to be a specific agreement that the terms of the Wills are to be binding on the parties. A feature of a mutual wills contract will be an express or implied covenant not to revoke or change the will after the death or incapacity of a contracting party. While both parties are alive and have capacity, the wills may only be changed or revoked by agreement. HOW DO THEY WORK After one spouse dies, the survivor is bound by the terms of the mutual will agreement to dispose of his or her assets as agreed with the deceased. Although the survivor cannot be physically prevented from changing his or her will a mutual will intends to create a legally binding contract which may continue to bind your Estate (and your assets) even after your death.   In the case of a breach of a mutual wills contract, a person who is a party to a mutual wills contract may rely on the contract to obtain damages or specific performance. An aggrieved beneficiary who is not a party to the mutual wills contract can arguably not rely on the contract itself because they are not a party to the contract. However, on the death of a party to a mutual wills contract, equity will recognise a constructive trust over the assets the subject of the mutual wills contract and afford an aggrieved beneficiary an enforceable right in this way. ADVANTAGES AND DISADVANTAGES OF MUTUAL WILLS An advantage of mutual wills contracts is that they enable both parties to the contract to have a say in who will ultimately be entitled to assets which may not pass into the estate of each individual, such as jointly held assets and assets held by one party only. Further, implementing mutual wills potentially enables a testator to provide benefits for a current spouse while preserving assets for children from a previous relationship. On the other hand, if the survivor wishes to defeat the mutual wills contract, he or she may be able to do so by dissipating the assets the subject of the agreement. In addition, due to the passage of time and changing circumstances of the surviving party, the courts may not uphold the mutual will or render it void due to uncertainty. This may occur by way of example if the survivor enters into a de-facto relationship or an event occurs that was not in contemplation at the time of the mutual will agreement, such as, a beneficiary engages in serious disentitling conduct. Further, in order to be effective in a situation where the survivor does not leave a will in the terms required by the mutual wills contract, it is left up to the intended beneficiaries of the mutual wills contract to: (a)    be aware of the existence of the mutual wills contract; (b)    be aware of the terms of the mutual wills contract; (c)    be aware of the nature of the constructive trust; and (d)    take action to enforce the agreement/constructive trust. In other words, if the intended beneficiaries are not aware of the existence of the mutual wills contract, do not understand its purpose or do not wish to act to enforce it then it may result in the deceased’s wishes not being carried into effect. Unless there are specific reasons that you require a mutual will to be drafted, our experienced and professional solicitors can advise you on the various other avenues and options available to you to ensure that your children are appropriately protected in the event of your death without having the added expense and complications of having a mutual will drafted. At Affinity Lawyers, we do not have a one size fits all estate planning solution.  Each individual client has their own specific needs and requirements, and their own set of circumstances, and what is right for one client will almost certainly not be right for another client. We tailor your estate planning documents to your particular needs, taking into account all of your individual circumstances and requirements to ensure that your testamentary intentions are accurately documented and you are fully appraised of the options available to you. To discuss your  individual estate planning needs or if you require assistance in the administration of an Estate, please do not hesitate to contact our Gold Coast team on<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> (07) 5563 8970 </a>or email us at<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> admin@affinitylawyers.com.au</a>. THE END OF PAPER CERTIFICATES OF TITLE http://www.affinityconveyancinglawyers.com.aublog-view/the-end-of-paper-certificates-of-title-76 2019-06-19T14:00:00+00:00 2019-06-19T14:00:00+00:00

The paper certificate of title is the latest casualty in the slow shift towards become a paperless society thanks to the passing of the Land, explosives and Other Legislation Amendment Act 2019 (âOLAAâ) last month. While this will likely be a positive change for those who deal with conveyancing matters regularly, it is a move that is likely to unsettle some of the older members of society, and during its âsettling inâ period, is likely to cause some confusion.

The paper certificate of title is the latest casualty in the slow shift towards become a paperless society thanks to the passing of the Land, explosives and Other Legislation Amendment Act 2019 (‘OLAA’) last month. While this will likely be a positive change for those who deal with conveyancing matters regularly, it is a move that is likely to unsettle some of the older members of society, and during its ‘settling in’ period, is likely to cause some confusion. In order to give effect to the amendments contained within the OLAA pertaining to Certificates of Title, various sections of the Land Title Act 1994 (Qld) (‘LTA’)  are being removed, with the effect that from the 1st October 2019 paper certificates of title will no longer be regarded as an ‘instrument’ under the LTA and will no longer be used. In practical terms, this means that even if you are presently holding an original certificate of title for your property, as of the 1st October 2019, the certificate will become nothing more than a sheet of paper and the electronic title register maintained by the Titles Registry will become the record and source of property ownership information. The shift to electronic titles registers has taken place Australia-wide, however while there are some states in Australia that still issue a paper certificate of title either upon registration of an interest in land or upon a request from the landowner, all of the states manage electronic titles registers, and the phasing out of all paper certificates of title appears to be only a matter of time. Many opponents of the shift to paperless titles registers were concerned about the security implications and the increased risk of fraud associated with property transactions. In fact, electronic title registrations, in conjunction with electronic conveyancing (PEXA), means that security is tightened as the lodgement of documents occurs simultaneously in the electronic workspace, reducing the gap of some 4 weeks or so which can often occur when settlements are physically conducted. There have been numerous safeguards built in to the electronic registers, the electronic conveyancing regime and its associated platforms such as multi-factor authentication and sophisticated algorithms to detect suspicious behaviour, as well as an increased focus on relevant participants carrying out  thorough identification checks, tightening up their own online security and verifying client instructions in multiple ways to ensure their veracity is maintained. Affinity Lawyers on the Gold Coast completed the first electronic Trustee Transfer in Queensland through PEXA in November 2017, and we welcome the shift to electronic conveyancing to provide our clients with secure, swift and straight-forward conveyancing transactions. You can read our earlier article about the launch <a href="https://www.affinitylawyers.com.au/blog-view/affinity-lawyers-has-helped-to-make-history-by-227">here</a>.  As always, should you have any queries regarding the sale or purchase of property, or any other conveyancing or property related enquiries, please contact our friendly Gold Coast team on 07 5563 8970. THE IMPORTANCE OF A CURRENT WILL http://www.affinityconveyancinglawyers.com.aublog-view/the-importance-of-a-current-will-77 2019-06-19T14:00:00+00:00 2019-06-19T14:00:00+00:00

A recent decision of the Supreme Court of Queensland has highlighted the importance of firstly, having a valid will, and secondly, understanding the correct way to have your will updated if you change your mind about the contents of your will, including changes to any beneficiaries.

A recent decision of the Supreme Court of Queensland has highlighted the importance of firstly, having a valid will, and secondly, understanding the correct way to have your will updated if you change your mind about the contents of your will, including changes to any beneficiaries. THE CASE In this case, a gentleman ‘Mr M’ made a will in 1994 appointing his daughter as executor and apart from a small bequest to his parents, his daughter was the entire beneficiary of his will.  This will was made with a solicitor, however Mr M kept the original will in his possession. Almost a decade later in 2013, Mr M had a falling out with his daughter, and attended on the Public Trustee of Queensland to have a new will drafted appointing the Public Trustee as the executor, and the RSPCA as the beneficiary of the estate (aside from two minor specified requests).  The new will was subsequently drafted, signed, and held by the Public Trustee on his behalf. The relationship between Mr M and his daughter improved considerably from 2014 onward. In 2016 he attended at the Public Trustee and collected the original will that he made in 2013. In 2018, Mr M was diagnosed with lung cancer, and despite treatment, his condition was deteriorating rapidly, requiring him to be admitted as an inpatient to hospital.  Prior to going into hospital, he gave a note to his next door neighbour to ask him to let his daughter know if he did not come out of hospital, and also words to the effect that his daughter would find his will (to her) and other items in the property. During his time in hospital, Mr M’s daughter visited him and they had several discussions wherein he told her that he had made a will in 2013 when he was angry at her and that he had ‘picked that will up so that there was no confusion in the future’ and that his ‘1994 will was what he wanted for his last wishes’.  He also told her that he intended to leave everything to her, and had also made comments to the same effect to others. After these discussions, his daughter located the 1994 will in his filing cabinet in a file marked ‘Wills’, and notably, the 2013 will was not contained in that folder. Upon taking the 1994 will in to Mr M in hospital, and asking if he wanted to re-do the will as his parents were now deceased, Mr M replied ‘no’ and that he was okay with how it was.  He also confirmed at that time that the document was his ‘current will’. Mr M died 10 days later. ISSUES Unfortunately for Mr M and his daughter, Mr M was operating under the mistaken belief that if he destroyed the 2013 will, then the 1994 will would become his current will. The Succession Act 1981 (Qld) governs wills and succession matters in Queensland, and section 13 of the Act specifies various ways in which a will can be revoked, and these include ‘revocation by means of a later will, or by a document declaring an intention to revoke the will, or by the testator destroying the will with an intention to revoke it, or writing on the will or otherwise dealing with it in a way which satisfies the Court that the testator intended to revoke it’. In this case, the Court found that Mr M had in fact effectively revoked his 1994 will when he executed his later will in 2013.  The mere statements that he made that he intended for his 1994 will to be his ‘current will’ were not enough to satisfy the court that he intended to revive the revoked will and because his 2013 will could not be found, it was held that he had died ‘intestate’ or without a will. The administration of an intestate estate follows Parts 1 and 2 of Schedule 2 of the Succession Act, and because Mr M left no surviving spouse, the estate would be distributed equally between his two children, his daughter, and a son he had from an earlier marriage (even though Mr M had no relationship with him due to irreparable differences). So, in this case at least, Mr M’s daughter will still likely receive 50% of Mr M’s estate despite Mr M’s failure to have a current will at the time of his death.  However, it is important to be aware that the situation may have been radically different if Mr M had a spouse or other children who were alive at the time of his death, and his daughter may have ended up receiving only a small amount, which appears to be contrary to his intentions. Nevertheless, Mr M’s oversight in relation to the will means that instead of 100% of his estate (subject to any rights Mr M’s son may have had under family provision legislation) going to his daughter, she is likely only going to receive 50%. This case again highlights the importance of having a current, valid will in place which accurately records your wishes and in the event that your wishes change, that you obtain professional advice in relation to drafting a new will. Our Gold Coast based wills & estates team have lawyers who are experienced in this area of law, and can guide you through the process to ensure that your will is current, and reflects your wishes upon your passing. To discuss your  individual estate planning needs or if you require assistance in the administration of an Estate, please do not hesitate to contact our Gold Coast team on<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> (07) 5563 8970 </a>or email us at<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> admin@affinitylawyers.com.au</a>. INJUNCTIONS http://www.affinityconveyancinglawyers.com.aublog-view/injunctions-72 2019-05-12T14:00:00+00:00 2019-05-12T14:00:00+00:00

An injunction can be described as a court order by which one party is required to perform, or is restrained from performing, a particular act. An example is a breach of confidential information from an employer, such as a client list that is being used by a former employee to build a business in competition with the former employer. If this has occurred the employer may have a right to obtain an injunction against the former employee pending a final hearing of the dispute. Seeking and obtaining an urgent injunction can be an important step in protecting your business from loss of profits due to an unlawful act.

An injunction can be described as a court order by which one party is required to perform, or is restrained from performing, a particular act. An example is a breach of confidential information from an employer, such as a client list that is being used by a former employee to build a business in competition with the former employer. If this has occurred the employer may have a right to obtain an injunction against the former employee pending a final hearing of the dispute. Seeking and obtaining an urgent injunction can be an important step in protecting your business from loss of profits due to an unlawful act. This article touches upon some of the general legal principals pertaining to urgent injunctions espoused by leading Judiciary members. OVERARCHING PRINCIPLE The relevant factors considered by the court on an interlocutory injunction are:   <ol> <li>a prima facie case;</li> <li>balance of convenience favours the granting of an injunction;</li> <li>the adequacy of damages as an alternative to an injunction; and</li> <li>discretionary factors.</li> </ol>   PRIMA FACIE CASE   Despite some historical judicial ambiguity over the adoption of the correct interpretation pertaining to a prima facie case, the confusion was arrested Australian Broadcastin Corp v O'Neill (2006) with the clarification through Gummow and Hayne JJ as follows:   The first [inquiry] is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted… [In other words]…a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.   BALANCE OF CONVENIENCE   The below discretionary factors have been found often to be a decisive factor when considering the balance of convenience:   <ol> <li>hardship to either party;</li> <li>irreparable harm;</li> <li>undertakings as to damages;</li> <li>impossibility or futility of performance; and</li> <li>the unclean hands equitable maxim.</li> </ol>   IRREPARABLE HARM   In Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349, Sachs LJ stated:   The standard question in relation to the grant of an injunction, "Are damages an adequate remedy", might perhaps, in the light of the authorities of recent years, be rewritten: "Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?   CONFLICTS OF EVIDENCE Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396 that in the context of an application for an interlocutory injunction: It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.   BREACH OF CONFIDENCE   In Coors Pavey Whiting & Byrne v Collector of Customs (Vic) Gummow's J, dissenting judgement neatly abridged the considerations and test to be adopted when considering a breach of confidence: It is now well settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidence (and is not for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of the information. … It may also be necessary… that unauthorised use would be to the detriment of the plaintiff.   THE RELEVANT FACTORS In Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd, Gowans J outlined the following six factors pertaining to a determination as to whether a document, information or design is a trade secret (commercial confidence);   <ul> <li>“the extent to which information is known outside the plaintiff's business;</li> <li>the extent to which the information was known by employees and others involved in the business (including the extent of the measures taken by the plaintiff to guard the secrecy of the information);</li> <li>the value of the information to the plaintiff and to its competitors;</li> <li>the amount of effort or money expended by the plaintiff in developing the information; and</li> <li>the ease or difficulty with which the information could be properly acquired or duplicated by others.”</li> </ul>   RECIPIENT OF CONFIDENTIAL INFORMATION – CLEAN HANDS In Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd, it was crystallised that a third party may be joined and liable for injunctive relief: Anyone who aids, abets in or procures the breach of contract of confidence may be enjoined together with the servant against the use of the information. But like him, I find that the defendant concerned, here the defendant company took the property in the machines with notice of the equity. It adopted Grigg's conduct, and was infected by his and Ashcroft's knowledge. It, too, is liable to injunctive relief. If you would like any further information or have any inquiries pertaining to an injunction, please do not hesitate to contact our office on (07) 5563 8970. INTERNATIONAL WILLS http://www.affinityconveyancinglawyers.com.aublog-view/international-wills-73 2019-05-12T14:00:00+00:00 2019-05-12T14:00:00+00:00

As we become an increasingly globalised society, it is becoming more common for peopleâs Estates to include foreign assets. If you have assets located overseas, whether it be real property (like a house or land) or personal property (such as bank accounts, vehicles, boats and household items), advice should be sought and careful consideration given to your foreign assets during the estate planning process in order to avoid unforeseen issues arising.

As we become an increasingly globalised society, it is becoming more common for people’s Estates to include foreign assets.  If you have assets located overseas, whether it be real property (like a house or land) or personal property (such as bank accounts, vehicles, boats and household items), advice should be sought and careful consideration given to your foreign assets during the estate planning process in order to avoid unforeseen issues arising. There are several factors which can affect an estate that includes foreign assets, such as citizenship, nationality, residence, and the laws and policies of the country in which the assets are located. THE LAW In an attempt to simplify succession law, the Australian Government agreed to the Convention Providing a Uniform Law on the Form of an International Will 1973 (‘the Convention’), which came into force in Australia on 10 March 2015. The purpose of the Convention was to introduce a new form of Will, known as an 'International Will', which is recognised as valid in all countries that are party to the Convention. One of the main benefits of having an internationally recognised Will is its ability to reduce the likelihood of conflict arising if it is unclear which country’s laws apply to the distribution or administration of a particular asset in your estate. However, an International Will is subject to various requirements and formalities prescribed by both the Convention and Australian law. THE FORMALITIES In practice, for an International Will to be valid, it will need to be signed by the Testator (Will maker) in the presence of two independent witnesses, and a third witness who is an ‘authorised person’ such as a lawyer or a notary public. In addition to witnessing the Will, the authorised witness is required to complete a certificate confirming that the International Will was prepared in accordance with the Convention. THE FOLLOWING COUNTRIES ARE PRESENTLY PARTIES TO THE CONVENTION  <table border="0" cellspacing="0" cellpadding="0"> <tbody> <tr> <td valign="top" width="249"> <ul> <li>Australia</li> <li>Belgium</li> <li>Bosnia and Herzegovina</li> <li>Canada</li> <li>Croatia</li> <li>Cyprus</li> <li>Ecuador</li> <li>France</li> <li>The Holy See (Vatican City)</li> <li>Iran</li> </ul>   </td> <td valign="top" width="227"> <ul> <li>Italy</li> <li>Laos</li> <li>Libya</li> <li>Niger</li> <li>Portugal</li> <li>Russian Federation</li> <li>Sierra Leone</li> <li>Slovenia</li> <li>United Kingdom</li> <li>United States of America</li> </ul> </td> </tr> </tbody> </table> THINGS TO CONSIDER Although an International Will may be beneficial in certain circumstances, it may not be appropriate if the laws of the other country are significantly different from the laws in Australia, or where there may be interpretation issues due to any language differences. In these circumstances, a more prudent solution may be to have separate Wills prepared in each country. However, if separate Wills are made, care must be taken to ensure that each Will is properly drafted, and is effective in the country in which it intends to apply. In this respect, it is paramount that your lawyer in Australia and overseas are aware that there are Wills located in other countries, so that they limit the scope of the Will to that country and do not inadvertently revoke your foreign Wills. Alternatively, it may be appropriate to consider whether your foreign assets are still relevant to your needs. If retaining the asset is of no great benefit to you, it may be wise to consider disposing of the asset, or transferring the asset to Australia before your passing to avoid complications in the administration of your Estate. Similarly, if you have foreign citizenship or foreign connections that could impose tax implications on you, then it may be appropriate to consider renouncing the citizenship or foreign connection during your lifetime. In this regard, you should consult with an industry tax professional or accountant as to whether any tax implications (such as Capital Gains Tax) will apply when disposing of assets overseas or if you intend to distribute assets to a beneficiary that is not a resident of the country where your assets are located. To discuss your  individual estate planning needs or if you require assistance in the administration of an Estate, please do not hesitate to <a href="http://www.affinityconveyancinglawyers.com.au/template.php?page=contact_us">contact us on (07) 5563 8970 or email us at admin@affinitylawyers.com.au</a> AFFINITY LAWYERS RELOCATION http://www.affinityconveyancinglawyers.com.aublog-view/affinity-lawyers-relocation-74 2019-05-12T14:00:00+00:00 2019-05-12T14:00:00+00:00

We are pleased to announce that Affinity Lawyers have relocated our office, a short distance, to larger premises, being Suite 8/465 Oxley Drive, Runaway Bay Gold Coast. The paramount consideration in the relocation decision, was the ability to remain up on the Northern Gold Coast, thereby enabling convenience and exceptional service levels, while continuing our expansion to meet the needs and expectations of our clients.

We are pleased to announce that Affinity Lawyers have relocated our office, a short distance, to larger premises, being Suite 8/465 Oxley Drive, Runaway Bay Gold Coast. The paramount consideration in the relocation decision, was the ability to remain up on the Northern Gold Coast, thereby enabling convenience and exceptional service levels, while continuing our expansion to meet the needs and expectations of our clients. Please see below map, and if you would kindly update your records - all other details such as phone and facsimile numbers remain the same: <img src="https://www.affinitylawyers.com.au/images/editorimages/affinitylawyersmap.png" alt="" width="350" height="417" /> As always, should you have any queries or require legal assistance please contact our office on 07 5563 8970 or email on <a>admin@affinitylawyers.com.au</a>. WHAT DO YOU NEED TO KNOW ABOUT COMMERCIAL LEASES AND RETAIL SHOP LEASES? http://www.affinityconveyancinglawyers.com.aublog-view/what-do-you-need-to-know-about-commercial-leases-70 2019-04-04T14:00:00+00:00 2019-04-04T14:00:00+00:00

We have many clients based on the Gold Coast and State-wide who are expanding into or starting a commercial enterprise and although itâs an exciting time when you are starting a business and seeking commercial premises, or when you purchase commercial premises and are looking for your first retail tenant, there are some important things to be aware of in relation to Commercial Leases and Retail Shop Leases in Queensland. It is most certainly not the case that a Commercial Lease or Retail Shop Lease is âone size fits allâ, and it is vitally important that the document that you sign contains all of the clauses that you need, and that those clauses which are overly onerous, or do not apply are removed.

We have many clients based on the Gold Coast and State-wide who are expanding into or starting a commercial enterprise and although it’s an exciting time when you are starting a business and seeking commercial premises, or when you purchase commercial premises and are looking for your first retail tenant, there are some important things to be aware of in relation to Commercial Leases and Retail Shop Leases in Queensland. It is most certainly not the case that a Commercial Lease or Retail Shop Lease is ‘one size fits all’, and it is vitally important that the document that you sign contains all of the clauses that you need, and that those clauses which are overly onerous, or do not apply are removed.  It is also important that you understand your rights, responsibilities and obligations under the lease before signing it, again to ensure that the lease document accurately reflects the agreement reached between the parties, and that you are fully aware of any issues which could affect your business in the future. We have written an article on the types of terms and conditions that are usually covered in a lease, which you can read <a href="https://www.affinitylawyers.com.au/blog-view/leasing-business-premises-250">here</a>. The last thing either a lessee or a lessor wants is to be stuck in a longterm lease containing unforgiving clauses, or terms and conditions that do not suit them. Generally speaking, there are two broad categories of ‘commercial leases’ to be aware of in Queensland, and if you are starting a business or purchasing commercial premises you will either be dealing with a general commercial lease or a Retail Shop Lease (depending on the type of business or the premises location). Retail Shop Leases differ from commercial leases in several ways.  Commercial leases tend to be associated with commercial property designed to cater for specific business purposes, such as offices, warehouses or industrial areas.  Further, it is also important to be aware that commercial leases tend to offer less legal protection for parties as they are not specifically protected by Statute. Retail Shop Leases on the other hand are generally those within ‘retail shopping centres’ or which are wholly/predominantly used for the carrying on of a retail business identified in the Retail Shop Leases Act 1994 (‘RSLA’) In contrast to commercial leases, the RSLA stipulates various requirements, including but not limited to disclosure requirements, minimum lease standards, rent reviews, core trading hours, lease assignment protocol and dispute resolution processes in respect of Retail Shop Leases. While it is important to seek independent and specific legal advice if you are considering entering into either a commercial lease or a Retail Shop Lease, if you are contemplating entering into a Retail Shop Lease you should be aware that there are strict disclosure obligations which apply. In this respect, both the lessor/landlord and lessee/tenant must comply with the strict disclosure obligations under the RSLA, which include, but are not limited to: - The Landlord must provide the Tenant with a completed Disclosure Statement, together with a draft copy of the lease, at least 7 days prior to the Tenant signing the lease; - The Tenant must likewise provide the Landlord with a Disclosure Statement prior to entry into the lease; - Tenants must obtain a Legal Advice Report from a Lawyer and a Financial Advice report from an Accountant and provide same to the Landlord We reiterate that a failure to comply with certain obligations under the RSLA can result in a party being able to terminate the lease, or suffer a financial detriment. Navigation of the RSLA can be complex and time consuming, and entry into a Commercial Lease can be just as daunting. This is why we always recommend that you obtain specific and tailored legal advice from one of our experienced Commercial Lawyers, prior to signing any lease documentation.  For your convenience, our Commercial team are on hand to assist you from the beginning of the process right through until completion, so please feel free to contact our Gold Coast office today on 07 5563 8970 to discuss your matter. WHAT IS A TESTAMENTARY TRUST? http://www.affinityconveyancinglawyers.com.aublog-view/what-is-a-testamentary-trust-71 2019-04-04T14:00:00+00:00 2019-04-04T14:00:00+00:00

Considered and strategic estate planning is a crucial part of any successful wealth protection strategy, and Affinity Lawyers have an experienced and professional wills and estate team in place to provide you with legal advice tailored to your individual circumstances. Our Wills & Estate lawyers, based on the Gold Coast, can prepare a premium Affinity Lawyer Will or an Affinity Lawyers Wealth Protection Will (a testamentary Trust Will) for you, depending on your needs.

Considered and strategic estate planning is a crucial part of any successful wealth protection strategy, and Affinity Lawyers have an experienced and professional wills and estate team in place to provide you with legal advice tailored to your individual circumstances. Our Wills & Estate lawyers, based on the Gold Coast, can prepare a premium Affinity Lawyer Will or an Affinity Lawyers Wealth Protection Will (a testamentary Trust Will) for you, depending on your needs. What is a Testamentary Trust? A Testamentary Trust is a trust established in someone’s Will.    It comes into existence only when the person dies.  A Will can establish more than one Testamentary Trust, such as a separate trust for each beneficiary. Who Controls the Assets? Whoever is named in the Will as trustee will control the trust’s assets, at least at first instance.  Like any trust, a Testamentary Trust can be as flexible or as fixed as you want.  The trustee can be given full discretion, or no discretion as to who should receive income and capital from the trust, and when they should receive it. Why Are They Used? Testamentary Trusts can be used for a variety of purposes including:   -    Reducing tax. -    Protecting spendthrift beneficiaries from themselves. -    Caring for children when they are young. -    Caring for beneficiaries who may have a disability. -    Providing some scope for keeping an inheritance out of the reach of the Family Court, where the beneficiary is involved in a Family Law property dispute. -    Protecting inheritances from a beneficiary’s creditors. -    Providing some scope for avoiding an unintended loss by a beneficiary of their Government-sources pension or other benefit.   Using a Testamentary Trust for income splitting with young children and/or a partner who does not work full time   Who would benefit?   -    Families with small children and/or a person whose partner does not work full time. -    Those who would need extra income to support the surviving family members should a parent die. -    Those for whom minimising tax is important.   How does it work?   <img src="https://www.affinitylawyers.com.au/images/editorimages/capture.png" alt="" width="308" height="286" /> Benefits Trust income distributed to children, of any age, will be taxed at adult rates rather than the penalty rates that normally apply to children's’ unearned income.  The trustee can have full discretion as to who receives trust income and capital, or restrictions can be placed on the persons who are permitted to receive trust income and capital. Our solicitors can go through the benefits of a Testamentary Trust with you in further detail during your estate planning consultation. Estate Planning and Asset Protection Most people would be more than happy to receive an inheritance.  But for those who have not put in place asset-protection strategies or who could be facing bankruptcy, this can cause a problem. People in financially high-risk occupations, such as professionals, business owners and company executives, will often prefer to not receive inherited assets in their own name.  To solve the problem they can ask for there to be included an appropriate provision, such as a Testamentary Trust, in the Wills of people likely to leave them assets. Example - John owned his own business which, during an economic downturn, was placed in liquidation.  As a result, John was made bankrupt.  A year earlier, John received an inheritance of $250,000.  As John received his inheritance in his own name, it was able to be taken and used to pay creditors of John’s business.  If John’s parents wills had been Affinity Lawyers Wealth Protection Wills, John’s inheritance may not have been available to creditors of his business. Example - Anne owned and ran a high-profile design company.  She had deliberately ensured that most of her assets were in her husband’s (Bob’s) name.  At least that way, if her business went bad, their home and savings would be protected.  When Anne’s parents died, she received the family beach house.  Though the business was doing well, its future success was not guaranteed.  To protect the beach house from a possible trustee in bankruptcy, she transferred it to a trust and paid $23,000 in stamp duty.  This expense could have been avoided if Anne’s parents wills had been. For more information about strategies for planning your estate or an Affinity Lawyers Wealth Protection Wills contact one of our experienced Gold Coast Lawyers on 5563 8970. NEW YEAR â A FRESH START FOR YOUR ESTATE PLANNING http://www.affinityconveyancinglawyers.com.aublog-view/new-year-a-fresh-start-for-your-estate-planning-68 2019-01-10T14:00:00+00:00 2019-01-10T14:00:00+00:00

At Affinity Lawyers, we like to take the start of a fresh new year to remind you that itâs a great time to take stock of your circumstances, and get some of those pesky tasks that you never seem to have time to do â done. For many tasks, including getting an up-to-date will drafted, completing it at the start of the new year allows you to easily remember the date it was completed, and serves as a perfect way for you to remember to review it as it was done on an easily remembered date/occasion.

At Affinity Lawyers, we like to take the start of a fresh new year to remind you that it’s a great time to take stock of your circumstances, and get some of those pesky tasks that you never seem to have time to do – done. For many tasks, including getting an up-to-date will drafted, completing it at the start of the new year allows you to easily remember the date it was completed, and serves as a perfect way for you to remember to review it as it was done on an easily remembered date/occasion. As with previous years, we commence 2019 with a goal that by the end of this year, all of our valued clients will either have an up-to-date will drafted, or have their current will reviewed to ensure that it still accurately reflects their wishes. It is vitally important that each and every person has a valid will in place which: -          accurately reflects their wishes;   -          takes into account their individual circumstances including but not limited to: current asset holdings, company/trust structures, children/guardianship issues, blended families, former spouses/de facto partners and children from earlier relationships, excluding beneficiaries, leaving assets or funds to a charity;   -          considers changes to circumstances since previous wills have been drafted including births, deaths, marriages and/or divorce/separations within the family, and the acquisition and disposal of property. We strongly recommend that you take the time to read through our previous articles (links below for your convenience) in relation to these matters, to consider your current circumstances, and encourage you to schedule an initial obligation-free consultation with one of our experienced wills & estate lawyers to discuss your estate planning matters free of charge. Please contact our friendly team on 07 5563 8970 today to make an appointment.   <a href="https://www.affinitylawyers.com.au/blog-view/making-a-last-will-and-testament-what-do-you-need-171">http://www.affinitylawyers.com.au/blog-view/making-a-last-will-and-testament-what-do-you-need-171</a> <a href="https://www.affinitylawyers.com.au/blog-view/do-you-need-a-testamentary-trust-254">https://www.affinitylawyers.com.au/blog-view/do-you-need-a-testamentary-trust-254</a> <a href="https://www.affinitylawyers.com.au/blog-view/estate-planning-wealth-protection-important-138">http://www.affinitylawyers.com.au/blog-view/estate-planning-wealth-protection-important-138</a> <a href="https://www.affinitylawyers.com.au/blog-view/testamentary-trust-wills-128">http://www.affinitylawyers.com.au/blog-view/testamentary-trust-wills-128</a> <a href="https://www.affinitylawyers.com.au/blog-view/the-importance-of-wills-115">http://www.affinitylawyers.com.au/blog-view/the-importance-of-wills-115</a> <a href="https://www.affinitylawyers.com.au/blog-view/nominal-assets-do-you-still-need-a-will-137">http://www.affinitylawyers.com.au/blog-view/nominal-assets-do-you-still-need-a-will-137</a> <a href="https://www.affinitylawyers.com.au/blog-view/your-cheap-will-kit-may-end-up-causing-an-213">https://www.affinitylawyers.com.au/blog-view/your-cheap-will-kit-may-end-up-causing-an-213</a> <a href="https://www.affinitylawyers.com.au/blog-view/estate-planning-wealth-protection-important-138">http://www.affinitylawyers.com.au/blog-view/estate-planning-wealth-protection-important-138</a> <a href="https://www.affinitylawyers.com.au/blog-view/timely-reminder-to-update-your-will-after-your-189">http://www.affinitylawyers.com.au/blog-view/timely-reminder-to-update-your-will-after-your-189</a> <a href="https://www.affinitylawyers.com.au/blog-view/superannuation-estate-planning-what-you-need-to-183">http://www.affinitylawyers.com.au/blog-view/superannuation-estate-planning-what-you-need-to-183</a> <a href="https://www.affinitylawyers.com.au/blog-view/estate-matters-family-provision-claims-154">http://www.affinitylawyers.com.au/blog-view/estate-matters-family-provision-claims-154</a> HAPPY NEW YEAR! http://www.affinityconveyancinglawyers.com.aublog-view/happy-new-year-69 2019-01-10T14:00:00+00:00 2019-01-10T14:00:00+00:00

We trust that all of our valued clients, colleagues and associates have had a wonderful break, and are ready to charge into the new year full speed ahead. Affinity Lawyers would like to extend well wishes to you all for a happy, safe and prosperous 2019, and we look forward to working with you in the near future. As always, our experienced and professional staff are on hand to assist with all of your legal enquiries or to provide you with specific advice in a broad range of legal areas, including but not limited to, employment law, family law, conveyancing (buying and selling), commercial property and leasing, litigation and of course, wills and estate planning.

We trust that all of our valued clients, colleagues and associates have had a wonderful break, and are ready to charge into the new year full speed ahead. Affinity Lawyers would like to extend well wishes to you all for a happy, safe and prosperous 2019, and we look forward to working with you in the near future. As always, our experienced and professional staff are on hand to assist with all of your legal enquiries or to provide you with specific advice in a broad range of legal areas, including but not limited to, employment law, family law, conveyancing (buying and selling), commercial property and leasing, litigation and of course, wills and estate planning. To get you inspired for the upcoming year, please see below links to some inspirational speeches that you may be interested in: Be A Hero: <a href="https://www.facebook.com/InnerlightMedia/videos/995626230595382/UzpfSTE0NjYyMjQyNjMxMjoxMDE1NjA2MzkwMzU5NjMxMw/">https://www.facebook.com/InnerlightMedia/videos/995626230595382/UzpfSTE0NjYyMjQyNjMxMjoxMDE1NjA2MzkwMzU5NjMxMw/</a> <ul> <li>How Bamboo Trees will bring out your best self: <a href="https://youtu.be/gMWXMMUg5pI" target="_blank">https://youtu.be/gMWXMMUg5pI</a></li> </ul> <ul> <li>Never Give Up: <a href="https://youtu.be/kZlXWp6vFdE" target="_blank">https://youtu.be/kZlXWp6vFdE</a></li> </ul>   Please feel free to contact our office today on 07 5563 8970 to arrange an initial consultation with one of our lawyers to discuss your individual needs and circumstances. IT'S BEGINNING TO LOOK A LOT LIKE CHRISTMAS http://www.affinityconveyancinglawyers.com.aublog-view/its-beginning-to-look-a-lot-like-christmas-67 2018-12-12T14:00:00+00:00 2018-12-12T14:00:00+00:00

It is that time of the year again when people are starting to relax, and are getting ready to enjoy the Christmas/New Year break after the busy working year and start looking forward to 2019. Therefore, we would like to extend to you some carefully drafted Christmas wishes, with an abundance of lawyer humour: Please accept with no obligation, implied or implicit, our best wishes for an environmentally conscious, socially responsible, low stress, non-addictive, gender neutral, celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious persuasion of your choice, or secular practices of your choice, with respect for the religious/secular persuasions and/or traditions of others, or their choice not to practice religious or secular traditions at all . . . and a fiscally successful, personally fulfilling, and medically uncomplicated recognition of the onset of the generally accepted calendar year 2019, and without regard to the race, creed, colour, age, physical ability, religious faith, choice of computer platform, or sexual preference of the wishee.

It is that time of the year again when people are starting to relax, and are getting ready to enjoy the Christmas/New Year break after the busy working year and start looking forward to 2019. Please accept with no obligation, implied or implicit, our best wishes for an environmentally conscious, socially responsible, low stress, non-addictive, gender neutral, celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious persuasion of your choice, or secular practices of your choice, with respect for the religious/secular persuasions and/or traditions of others, or their choice not to practice religious or secular traditions at all . . . and a fiscally successful, personally fulfilling, and medically uncomplicated recognition of the onset of the generally accepted calendar year 2019, and without regard to the race, creed, colour, age, physical ability, religious faith, choice of computer platform, or sexual preference of the wishee. By accepting this greeting, you are accepting these terms. This greeting is subject to clarification or withdrawal. It is freely transferable with no alteration to the original greeting. It implies no promise by the wisher to actually implement any of the wishes for her/himself or others, and is void where prohibited by law, and is revocable at the sole discretion of the wisher. This wish is warranted to perform as expected within the usual application of good tidings for a period of one year, or until the issuance of a subsequent holiday greeting, whichever comes first, and warranty is limited to replacement of this wish or issuance of a new wish at the sole discretion of the wisher. (www.urbandictionary.com) On a serious note, we hope that 2018 was indeed a happy and prosperous year for you all, and that 2019 also brings those qualities with it and if possible, even more positivity and joy. The team at Affinity Lawyers continue to be grateful for our loyal clients, our network of associates and the local community here on the Northern end of the Gold Coast - we thank you for your ongoing and continued support and are honoured to be your chosen Firm for legal services.    We pride ourselves in providing quality and professional legal advice, at the highest level of service standards possible, and trust that each and every one of you who have worked with us have experienced our passion within this industry.  We hope to continue to build relationships with you in the new year and beyond, and thank you for giving us the opportunity to do so. For your convenience we are open throughout the Christmas/New Year break (except for public holidays) to assist you if required, so please do not hesitate to call our office on 5563 8970. Affinity Lawyers wishes you and your families a very Merry Christmas and a Happy New Year and we look forward to working with you in 2019. PPSR CHARGES - ARE YOURS ABOUT TO EXPIRE? http://www.affinityconveyancinglawyers.com.aublog-view/ppsr-charges-are-yours-about-to-expire-65 2018-12-10T14:00:00+00:00 2018-12-10T14:00:00+00:00

Personal property is considered to be any form of property other than land, buildings or fixtures which form a part of that land. This can include cars, boats, caravans, art, machinery and crops as well as intangibles such as intellectual property and contract rights. The Personal Property Securities Register (PPSR took over from the REVS (Register of Encumbered Vehicles) Queensland and Bills of Sale Register in 2012. The purpose of the register is to determine the priority for secured creditors in the event that a debtor defaults or goes into liquidation.

Personal property is considered to be any form of property other than land, buildings or fixtures which form a part of that land. This can include cars, boats, caravans, art, machinery and crops as well as intangibles such as intellectual property and contract rights.  The Personal Property Securities Register (PPSR took over from the REVS (Register of Encumbered Vehicles) Queensland and Bills of Sale Register in 2012.   The purpose of the register is to determine the priority for secured creditors in the event that a debtor defaults or goes into liquidation.    Because registrations for personal property on the Personal Property Securities Register (PPSR) have been able to be undertaken since January 2012, we are coming up to the register’s 7 year anniversary in January 2019, and this means that those registrations which were registered for a period of 7 years or less are coming up for renewal/will expire in January 2019.  Because the ‘7 year or less’ registrations were the cheapest available option, there are an estimated 120,000 registrations which will require action prior to January 2019 to ensure they remain active, and priority order is maintained.   The registration period for certain registrations in respect of motor vehicles, watercraft and other property which may or must be described by a serial number, (for example certain items of plant and machinery), were limited to a maximum of seven years in duration, and therefore those registered in January 2012 will lapse in January 2019 unless they are also extended.   It is important for anyone who holds a security registration to review this regularly, and make sure that they are aware of their renewal/expiry dates so they can take any action necessary to ensure that they don’t become unsecured.  Even if the registrations were originally recorded through a different register, they would have been automatically transferred to the PPSR so it is always best to check even if you are not certain that a current deadline is applicable to you.   There is a handy PDF resource available here (<a href="https://www.ppsr.gov.au/sites/g/files/net3626/f/PPSR-business-guide.pdf">https://www.ppsr.gov.au/sites/g/files/net3626/f/PPSR-business-guide.pdf</a>) which is issued by the Australian Government and can help to explain the PPSR further.   If you need assistance in checking your registrations, or enquiring about how to register a security interest in general, our experienced Gold Coast lawyers can provide professional and experienced advice tailored to your particular circumstances.   Please feel free to telephone our law office today on 5563 8970 to arrange an appointment with one of our solicitors.  AIRBNB AND BODY CORPORATES http://www.affinityconveyancinglawyers.com.aublog-view/airbnb-and-body-corporates-66 2018-12-10T14:00:00+00:00 2018-12-10T14:00:00+00:00

The ability for unit owners to rent out their units for short term accommodation via sites such as âAirbnbâ or âStayzâ has long been a grey area, with many body corporates attempting to stop these types of rentals from happening by attempting to enforce by-laws which have been explicitly drafted to exclude short term rentals. It has been an ongoing tug-of-war between unit owners and Body Corporates, with each vying for the âwinningâ position. It appears that the âwinnerâ has now been determined, and the recent decision of the Body Corporate for Hilton Park CTS 27490 v. Colin Robertson [2018] by the Queensland Civil and Administrative Tribunal has provided clarity for unit owners by ruling that they are legally entitled to offer their units for short-term rentals (through schemes such as Airbnb or Stayz) and that any attempt made by the Body Corporate to restrict such use by way of a by-law or other means is invalid and will not be enforceable.

The ability for unit owners to rent out their units for short term accommodation via sites such as ‘Airbnb’ or ‘Stayz’ has long been a grey area, with many body corporates attempting to stop these types of rentals from happening by attempting to enforce by-laws which have been explicitly drafted to exclude short term rentals. It has been an ongoing tug-of-war between unit owners and Body Corporates, with each vying for the ‘winning’ position. It appears that the ‘winner’ has now been determined, and the recent decision of the Body Corporate for Hilton Park CTS 27490 v. Colin Robertson [2018] by the Queensland Civil and Administrative Tribunal has provided clarity for unit owners by ruling that they are legally entitled to offer their units for short-term rentals (through schemes such as Airbnb or Stayz) and that any attempt made by the Body Corporate to restrict such use by way of a by-law or other means is  invalid and will not be enforceable. In arriving at his decision, Member King-Scott relied on s180(3) of the Body Corporate and Community Management Act, which essentially states that by-laws cannot restrict the type of residential use of the lot if the lot may lawfully be used for residential purposes, and because the term ‘residential’ has not been clarified or defined, it is to be read in the broadest sense and therefore permits any residential use of the lot. As can be appreciated, this decision will no doubt ruffle the feathers of body corporates/committees in complexes throughout Queensland, as well as permanent residents who are not likely to appreciate their neighbours changing on a regular basis. Further, it is also likely to catch incoming purchasers off-guard, who are presumably not aware of this recent decision (and of the argy-bargy that has been occurring within complexes for some time) and who have purchased with an expectation that their complex does not allow short term rentals. Our professional legal team at Affinity Lawyers are well placed to provide you with advice in relation to body corporate matters, whether you are a lot owner, member of the body corporate or an interested purchaser, and we are happy to answer any questions you may have in relation to your rights, obligations or entitlements.  Feel free to contact our Gold Coast law office on 5563 8970 to arrange your appointment.