Neighbourhood Disputes

neighbourhood disputes

The new Act came into effect late last year (2011) and it introduces new responsibilities and rights in relation to trees.  The Act introduces the new expression of “tree keeper”.  The tree keeper is the person who is responsible to maintain the tree and ensuring that it does not become a nuisance.

A person affected by an overhanging tree can still exercise the common law right of abatement (eg: by lopping branches and roots to the boundary).  Now a neighbour can decide whether or not to return the lopped branches or roots or to dispose of the cuttings themselves.  When exercising the right of abatement, neighbours must take care to comply with any applicable tree or vegetation protection orders.

If a neighbour wants the tree keeper to take responsibility for lopping the branches of their tree hanging over the boundary, then the neighbour can serve a notice for overhanging branches upon the tree keeper.  This notice can be used for branches which are more than half a meter over the boundary and less than 2.5 metres above the ground.  If the tree keeper does not respond to the notice, the neighbour can proceed to have the lopping done and recover from the tree keeper a max sum of $300.00 per annum.  Importantly, responsibility is placed on the tree keeper to ensure their neighbour’s land is not affected by a tree growing on the tree keeper’s land. For the purpose of the Act, land is affected by the tree if a neighbour can demonstrate that the tree caused serious injury to a person, serious damage to land or property or interferes with their enjoyment of the land.

“QCAT” (Queensland Civil Administrative Tribunal) has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that the land is affected by the tree.

Be Careful When Buying a Used Car

buying a used car

The Office of Fair Trading has warned consumers to beware of discrepancies between what they are promised by salespeople and what is stipulated in the contract.

A story was reported by a man who decided to buy a second-hand car at a dealership and was told by the salesman that a new car stereo would be installed at no extra cost.

The buyer signed the contract, which did not list the stereo as an extra, but was assured by the salesman that the stereo would be added to the contract later.

When he went to collect the car a few days later, he found that the stereo had not been installed as promised.  He was told that the salesman he had dealt with was unavailable and the dealership manager told him, that there were no extras listed in the contract and so he was not entitled to the free installation of the car stereo.

Verbal agreements can form part of a contract but are often impossible to prove. There are also other considerations to take into account when signing a contract to buy a motor vehicle.

If you buy a car privately, you are not entitled to the normal protection of:

 the cooling-off period,

 you will not get a statutory warranty,

 the seller is not obliged to give you a REVS certificate or Vcheck nor are they bound by the same laws and code of Conduct as licensed dealers, and

 you cannot access the compensation claim fund if anything goes wrong.

Buying from a licensed motor dealer can be more expensive than a private sale, but it is often safer. All motor dealers selling used cars in Queensland must be licensed.  Licensed motor dealers who sell cars privately may actually be breaking the law, and they must disclose to all intending buyers that they are licensed and provide a cooling-off period and statutory warranty.

When you buy a used car from a licensed dealer, you are entitled to:

 A one business day cooling-off period,

 A statutory warranty;

 A guarantee of clear title on the vehicle;

 Protection by the motor dealer’s Code of Conduct;

 Access to a claim fund which may compensate you if you have suffered a financial loss because of the motor dealer’s actions.

De Facto Property Disputes

de facto property disputes

A defacto spouse can now apply to the Court for a division of property where:-
(a) The relationship was for a minimum of two years; or
(b) There is a child of the relationship under the age of eighteen; or
(c) Where you can’t bring yourself within (a) or (b) but can show that a serious injustice would result from failure to recognise a defacto spouses financial or non-financial contribution.

So even for relationships of a relatively short duration say six to twelve months, you can still make application to the Court for a division of property where you can show a serious injustice would result.

Such applications must be brought to the Court within two years of the end of the relationship.

A defacto spouse still has the right to seek child maintenance pursuant to the Child Support Act and other disputes concerning children such as residence and contact can still be dealt with by the Family Court.

Property Disputes

Unfortunately, couples cannot always agree as to the division of property upon the breakdown of a marriage. Others simply don’t know what they are entitled to and need advice as to their entitlements.

At McLaughlin & Associates we take a caring and sympathetic approach to matrimonial matters. We try our hardest to ensure that property disputes are resolved between the parties without the need to go to Court and on average 90% of disputes are able to be resolved without the need for a Court hearing.

If agreement can be reached with your spouse on how to divide up your assets/liabilities an Application for Consent Orders can be made to the Family Court. If you are unable to reach an agreement, you can apply to the Court for Property Orders.

The law governing the division of assets is complex and therefore, we strongly recommend that you seek our advice before making any decision on such division.

First Home Owners Grant

neighbourhood disputes

As of the 1st July, 2000 first home buyers may qualify to receive a one off $7,000.00 grant from the Federal Government. Maybe you, your children or someone you know can take advantage of the grant!

There appears to be a lot of confusion and misinformation about who is eligible for the grant. For example, I had a client who was informed by her Bank Manager that she was not eligible for the grant because she was not buying a “new” home. Wrong!

Lets have a look at some of the requirements for eligibility.

  • For a person to be eligible for the grant they must:-
  • Be buying or building their first home.
  • Enter into a Contract to buy an existing home or build a new home on or after 1 July, 2000.
  • Be an Australian Citizen or permanent resident.
  • Intend to reside in the home as their principle place of residence.
  • Start living in the home within a reasonable time.

Other points to know are:-

  • The payment is not means tested.
  • Trusts and Company’s are not eligible for the grant.
  • The payment will be made regardless of where the person buys or the value of the home they are buying/building.
  • It applies to both new and established homes.
  • It does not apply to holiday houses or investment properties.

There are some catches to eligibility so it is vitally important you speak with a person who knows what they are talking about.

When the Going Gets Tough

when the going gets tough

When times are tough (and for 90% of businesses its tough right now) then you have to get tough yourself.  When times are good businesses have a tendancy to get fat and lazy.  Just like a person who has been living the highlife businesses can become unhealthy.  The wake up call (and the first and most worrying sign for a business) is cash flow problems.

It’s not rocket science.  When revenues/sales fall below what your monthly overheads are you are deemed to have a cash flow problem.  When that occurs, you as a business owner have to get tough.  Sometimes that means being tough on yourself, your suppliers, your customers, your business.

Businesses that successfully practice good cash management generally survive and prosper during downturns; those that don’t are likely to be undone by the weight of increasing debt and the inability to pay employees and suppliers.

Here are 11 tips that you can action immediately:

1.  Take the maximum time to pay your suppliers whilst remaining within their normal payment terms. Essentially this amounts to an interest-free line of credit, and gives you more time to use your working capital.

2. Check to see if your suppliers offer payment incentives. Some businesses offer a discount for paying early. Even if your business regularly purchases a substantial amount from another company, you’re in a good position to negotiate  favourable payment terms. In addition to early payment incentives, ask for special terms that accommodate your cash flow requirements. For example, negotiate to make payments after your busiest time of the month.

Many suppliers are willing to offer incentives in order to speed up their own receivables and cement long-term relationships with good customers.

3.  On your end, consider offering customer discounts to early payers. Consider providing a small discount when bills are paid within ten days of delivery. It may cost you a little, but it can also light a fire under slow payers – and have a positive effect on your cash flow. However, before taking this step, consider whether you could borrow money you need at a lower cost.

4. Examine payment terms and your billing schedule. If possible, send an invoice with your shipments, not after delivery is made. Waiting until the end of the month can add as many as 30 extra days to your cash flow conversion period. If your business provides a service and it is appropriate, ask customers for a deposit before work begins.

Remind customers of your credit terms. Check your invoices or statements to ensure there is a clear indication of when payment is due. Encourage customers to pay with fund transfers or Internet payments.

5.  Closely track and collect overdue accounts. Have your accounting department prepare fast, accurate reports on overdue payments. Monitoring accounts can reveal early warning signs. Act immediately on past-due accounts and use a collection agency if necessary. Telephone tardy customers and obtain a payment commitment by a specific date.

Don’t keep delivering services or shipping goods when payments are far behind. Put problem customers on a COD system or stop shipments altogether.

6. Consider establishing an interest penalty for late payments. Once a bill becomes seriously overdue, you may have to resort to penalties. While you can, and should, sympathise with hard-pressed customers for a reasonable amount of time, don’t let their problems become your problem by dragging your cash flow down.

7.  Don’t extend credit without taking the proper precautions. Require all new customers to fill out credit applications. Request and check credit references.

A written agreement at the onset of a business relationship can help avoid misunderstandings later on. Spell out the terms of the arrangement on your credit application. You might want to go one step further and have customers sign a separate statement or contract identifying not only when payments are due but also that the other party is liable for any legal or arbitration costs if a bill is not paid.

If your business is extending credit to a financially troubled business, insist on securing personal guarantees from the owners, as well as their spouses.

8. Trim expenses and cut unnecessary spending. Look for ways to reduce waste in office supplies, business-owned vehicles, mobile phones and land lines, utilities, business travel, overtime pay, insurance, and more. Ask your employees for cost-cutting suggestions. They are likely to come up with ideas management hasn’t even considered.

Dispose of unused vehicles, vacant real estate, and machinery you don’t need. You could be paying insurance, maintenance and storage costs on them. Selling idle assets can result in a cash flow boost, while donating to a qualified charity can be smart tax move.

9. Keep your inventory lean. As a rule of thumb, the expense of maintaining stock in inventory averages about two percent of the cost of those goods for each month not sold. If your business carries an item for a year, you’re down 24 percent. It’s hard to overcome this kind of cost handicap – especially in hard times.

Don’t fall into the trap of hanging onto slow-moving inventory in order to avoid admitting you made a mistake. Cut your losses on old and outdated inventory items. Or donate them and claim a charitable tax deduction.

10. Free up cash by leasing rather than buying. Leasing computer equipment, cars, facilities, tools and other equipment generally costs more than buying, but you avoid tying up cash. You can also limit your exposure with short-term leases.

11. Examine prices. Many business owners and executives won’t consider increasing prices in a tough economy because they’re afraid customers will head to the competition. But it may be necessary if your prices aren’t keeping pace with expenses. If you do raise prices, explain the reasons to your customers, and if possible, give them notice.

Emphasise the value of your products or services.

Should you wish to discuss any matters regarding the matters raised in this article please contact Mr John McLaughlin McLaughlin & Associates on 3808 7777.

Will & Estate Planning Advice

will and estate planning advice

 

Who or what is an executor of an estate?

An executor of an estate is responsible for carrying out the wishes of the deceased person. Essentially, they manage the estate according to the outline of the Will. For example, the executor of estate can organise the funeral, locate and identify the Will, apply to the Supreme Court for probate, determine the beneficiaries, inventory, value and collect all assets, pay insurances on assets, pay any outstanding debts, manage accounts, prepare and lodge tax forms, defend the estate against claimants and distribute the assets according to the Will. 

If there are any mistakes made by the executor of an estate in administering the estate, they can actually be liable for the financial losses to the estate, for example, where insurances have not been paid and fire burns down a building (which is an asset of the deceased). You can however, refuse to be named as an executor of an estate and ask the Public Trustee to administer the estate. Once you accept the responsibility however, it is often difficult to remove yourself from the role, but it can be done.

Preparing your Will

Here are a few ways that we at McLaughlin & Associates can help you in preparing your Will:-

  • Make sure your Will is valid – that is, properly drawn up, correctly signed and witnessed.
  • Make sure your wishes are clearly set out.
  • Make sure that you have made adequate provision for your spouse and children, including who should be legal guardian of your children.
  • Advise you on choosing an Executor, Trustee and Guardian.
  • Discuss relevant Tax Laws.
  • Advise on the possibility of claims against your estate and avoid or limit disputes between remaining family members.
  • Avoid the problems with intestacy – the imposition of a State appointed Administrator applying pre-determined rules to the disposition of your assets.
  • Keep you Will in safe custody free of charge.

Technical Terms in a Will

technical terms in a will

 

Estate planning lawyer definitions

As an estate planning lawyer, we will help you to write your Will, however below you will find a number of definitions that you need to understand.

Testator: The person making the Will.

Testamentary capacity: Refers to the mental capacity of the testator to make a Will. The Testator must be of sound mind and at least 18 years of age.

Executor: The person appointed in a Will to manage the administration of the Testator’s estate. The executor must be 18 years of age, although does not need to have any formal qualification to perform this role.

Estate: All of the assets and liabilities of the Testator as at the date of death. As to what constitutes a Testator’s assets can be quite complex (as an estate planning lawyer, we can help you with this aspect of your Will). For example, superannuation and life insurance policies do not necessarily form part of the estate. Property which is owned with another, as joint tenants, does not form part of the estate, neither does property belonging to a Trust or company, although monies owed to the deceased in a loan account of a trust or company and the shares owned by the deceased in a company do form part of the estate.

Administration of Estate: It is the Executor’s role to identify all assets and liabilities of the estate, collect the assets and pay the liabilities before distributing amongst the beneficiaries named in the Will.

Beneficiaries: The persons named in the Will who will receive a distribution from the Estate.

Death Duties: Are not currently paid in Queensland but may be payable in other states.

Intestacy: Occurs when a person dies without leaving a valid Will. Where this occurs a person is said to have died “intestate”. In these cases the assets are distributed in accordance with Schedule 2 of the Succession Act (Qld) depending upon the Testator’s circumstances at the time of death.

Family provision: A Testator’s spouse child, step-child or dependant may make an application to the Supreme Court for further provision to be made from the Testator’s estate even if they have already been provided for in the Will.

Spouse: Includes a husband, wife, de-facto partner or a former husband, wife or de-facto partner.

Child: Includes any biological child, step-child or adopted child of the Testator. The step-child ceases being a child upon the divorce of the Testator and the child’s parent.

Dependant: Any person who is being wholly or substantially maintained or supported by the Testator at the time of their death. This can include a parent of the Testator, a parent of a surviving child under the age of 18 years of a person.

Grant of Probate: The Supreme Court makes an Order that the Will is the last Will of the Testator. In a lot of cases a bank or financial institution will require a Grant of Probate before releasing monies to the Executor.

Letters of Administration: Where a person has died intestate or if there is a Will but no executor, an application is made to the Supreme Court for Letters of Administration which will allow for distribution of the Estate.

Waiting Periods: There are several waiting periods in the administration of the Estate:

  • The Death Certificate can take up to six weeks from the date of death to be issued;
  • Any person who has not been named in the Will and intends to make a claim on the Estate must give notice to the Executor within six months of the date of death;
  • For that reason it is recommended that the Estate is not distributed until nine months has passed from the date of death to ensure the Estate can meet payment of any claims;
  • Where an executor needs to apply for a Grant of Probate of Letters of Administration, notice of the intended application must be advertised at least 14 days before the application is filed in the Supreme Court;
  • A copy of the Notice must be given to the Public Trustee of Queensland seven days before filing the application in the Supreme Court.

Transmission Application: Where the Testator owned real estate it can be transferred by lodging a Transmission Application in the Titles Office.

Transmission Application by Personal Representative: This is usually done where it is intended the property be sold by the Executor as part of the administration of the Estate to meet debts and to pay out the entitlements of the beneficiaries.

Transmission Application for Registration as Devisee-Legatee: This is usually done where it is intended the property can be transferred to the beneficiary who has been named in the Will to receive that particular property.

Request to Record Death: This is done when real estate is held by the deceased as joint tenants with another person. By lodging the Record of Death the property is then owned solely by the surviving tenant.

 

As an estate planning lawyer, McLaughlin & Associates will ensure that your Will reflects your wishes for your estate. Without the assistance of an estate planning lawyer however, your Will may not be legally binding and may lack the correct wording that is required.