Property Settlement

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property settlement

 

Today I wish to discuss property division and what things the Court takes into consideration when making its decision.

The first thing to ascertain is the asset pool. In other words, one needs to identify all the assets (and their value) of both parties. Generally, all assets must be taken into account, whether they were obtained before or during the marriage, or even after separation.

The definition of “property” is very wide and includes everything that you and your spouse own either jointly or separately. For example, any real estate, shares, motor vehicles, jewellery, savings and household contents/furniture whether registered in your name solely or in both names.

It is also necessary to take into account ‘financial resources’ such as superannuation entitlements, interests in any trusts, long service leave entitlements, personal injuries claims etc.

The Court also looks at each parties contribution towards acquiring, increasing, maintain or improving any asset. Both financial and non-financial contributions are considered. For example, if one party has been running and looking after the household and caring for the children whilst the other spouse has been working fulltime and earning income, the non-working spouse is deemed to have made a contribution as a homemaker and parent and their non-financial contribution is taken into account. Initial contributions towards the marriage such as who brought what assets into the marriage as well as gifts and inheritances are also relevant.

In deciding who gets what, the Court also has regard to the future needs of both parties taking into account a wide range of things such as each parties age, health, income earning capacity, if they have the care of any children etc etc.

The law governing the division of assets is very complex and therefore, you should obtain legal advice before making any agreement with your spouse.

Book a consultation at McLaughlin & Associate Lawyers to ensure you receive Brisbane’s best legal services.

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Only in America

only_in_america

Weird cases are drawn to our attention and so we thought we would provide some light hearted humour. We have ranked them in order. Enjoy.

Third Place: Kathleen Robertson of Austin, Texas, was awarded $80,000 by a jury of her peers after breaking her ankle tripping over a toddler who was running inside a furniture store. The owners of the store were understandably surprised at the verdict, considering the misbehaving little toddler was Ms Robertson’s son.

Second Place: Jerry Williams of Little Rock, Arkansas, was awarded $14,500 and medical expenses after being bitten on the buttocks by his next door neighbour’s beagle. The beagle was on a chain in its owner’s fenced yard. The award was less than sought because the jury felt the dog might have been just a little provoked at the time by Mr Williams who had climbed over the fence into the yard and was shooting it repeatedly with a pellet gun.

Our runaway winner was Mrs Merv Grazinski of Oklahoma City, Oklahoma: (This story sounds eerily familiar, like an urban legend, but it is apparently a matter of public record in 2005 at the Superior Court in Oklahoma City, and it just goes to show that you can’t protect stupid people from themselves).

Mrs Grazinski purchased a brand new 32-foot Winnebago motor home. On her first trip home, (from a football game), having driven onto the freeway, she set the cruise control at 70 mph and calmly left the driver’s seat to go into the back and make herself a sandwich. Not surprisingly, the RV left the freeway, crashed and overturned. Mrs Grazinski sued Winnebago for not advising her in the owner’s manual that she couldn’t actually do this. The jury awarded her $1,750,000 plus a new motor home.

It is said the Winnebago company actually changed their vehicle operating manuals on the basis of this suit, just in case there were any other complete morons in the world!

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McLaughlin & Associates: 9th Biggest Annual Tea

Local businesses dig deep for Cancer Council’s great fundraising drive!

The cold weather did not dampen the spirit of local business in helping out in the Australia’s Biggest Morning Tea.  John McLaughlin from local legal firm McLaughlin & Associates Lawyers, hosted his 9th annual fundraising drive for the Cancer Council with many local business identities attending.  The morning raised $3,455.35, a record for the event.

Representative from Cancer Council, Hayley Mill, wrote to thank Mr McLaughlin: “It was really lovely to see to the community coming together to support your morning tea.  It goes to show how much people respect you and your organisation. I can’t believe how much was raised”.

Mr McLaughlin acknowledged that the success of the morning centres around the efforts of his staff, all of whom contributed by baking, and making a delightful banquet of cakes, slices, soups, and sandwiches as well as the support of local businesses donating raffle prizes including Connect Finance Queensland (Steve Cooke), Consulting IT (Anthony Fensom), Coffee Club (Barry Lane), LeReve Skin Care (Faizey Greaves), Cathy’s Private Hair Studio (Cathy Wardlaw), Springwood Office Choice (Brian Gainsford), Miss Massuse, Hyperplex Cinemas Loganholme, Lifestyle Health Club, Metropolitan Funerals, Focus on James, Southern Cross Accounting (Tracey McGuinness), Print Giant,

Several local businesses also provided cash donations including PT Partners Accountants, Tall Trees, Shine Lawyers, and the biggest of all Bendigo Bank who donated $1,500.00. The event keeps getting bigger each year and John said he is hoping next year, the 10th anniversary will be bigger and better than ever.

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Director’s Penalty Notice (DPN)

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Directors penalty notice
In recent months there has been an increase in activity by the ATO against businesses who are behind in the lodgement of their Business Activity Statements (BAS) and Returns.  This recent crackdown means that many companies and their Directors face the possibility of prosecution or fines if they do not comply with their statutory obligations.
Consequences for not lodging Activity Statements and Returns
If you are late in lodging your Returns or Activity Statements you will incur penalties and be charged a daily interest rate currently 9.59%  on any unpaid monies.
Once a company has received an ATO Compliance Notice and still fails to lodge their returns, they could face the following repercussions:-
• An audit and face further investigation from the ATO
• The ATO may estimate their net assessable amount or taxable income and the tax they owe without further warning
• A business or individual could be referred for prosecution without  further warning
• If prosecuted and convicted, an individual could be fined up to $8,500.00 or imprisoned for up to 12 months, for a company the maximum fine is $42,500.00.
Advice to clients
You should :-
• Ensure all outstanding BAS and PAYG returns are lodged as soon as possible
• Pay all PAYG superannuation charge amounts within the relevant time frames
• Keep all BAS and PAYG returns up to date and lodged within 3 months of the due date
If a BAS return is lodged or a PAYG is not paid, the ATO may issue a Director Penalty Notice.  At the expiry of the 21 day notice period, personal liability can apply.  Director’s personal liability for a company’s unpaid PAYG will be avoided if a company enters into voluntary administration or has a liquidator appointed before the expiry of the Director Penalty Notice.  If unpaid PAYG is not recorded within 3 months of the due date the Director will automatically be personally liable for any unpaid amounts even if the company is placed in voluntary administration or liquidation after this date.
If you have any overdue paid BAS and/or PAYG returns and/or overdue PAYG superannuation charge payments contact us immediately to discuss your options.
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National Business Names Register

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national business names register

Business names used to be registered in the state or territory where the business was located and each state and territory kept its own register. The national register of business names replaces the existing state and territory registers.

The Australian Securities and Investments Commission (ASIC) now administers the new national business names register.

Benefits of the new national register

The national register offers Queensland businesses many advantages:

  • The national system eliminates the need for businesses who trade across state borders to register their name in multiple jurisdictions.
  • Businesses will be able to register and renew their national business name online.
    Online payment options will also be available.
  • Business name registration will be combined into a single online transaction with
    the registration of an Australian Business Number.
  • Queensland businesses will benefit from reduced registration fees (details below).

Transition to the new national register

The Queensland register ceased operation at 5pm on Friday 25 May.

As a business name holder in Queensland, you do not have to do anything during the transition. All existing Queensland business names automatically transition to the national register in preparation for its commencement on Monday 28 May.

All of your business name details transitioned to the national register, including your existing expiry date. So if your Queensland business name is due to expire on 1 December 2012, this is the date that ASIC will record as the expiry date of your new national business name.

Duplicate names

If you have registered the same business name in multiple jurisdictions, all of your business names will have transitioned to the national business names register, meaning that you may have multiple identical business names registered to you.

Under the new system, you can choose to keep one of your business names and let the rest expire. If you prefer, you can speed up this process by cancelling any business name that you no longer require. There is no fee to cancel a business name.

If the same business name has been registered by different businesses in different jurisdictions, all of the business names will still have been transitioned to the national business names register. An additional identifier (such as the word ‘Queensland’) will appear on the register to assist in differentiating between identical business names.

This additional identifier will not form part of your business name, meaning that you can continue to trade using the business name you have always had.

Renewing your business name

If your business name was due for renewal before 28 May 2012, you should already have received your business name renewal form from the Office of Fair Trading. You will need to renew your business name in Queensland, prior to the transition to the national register. If you haven’t already done so, please ensure that you lodge your form and appropriate fee as soon as possible.

If your business name is due for renewal on or after 28 May 2012, ASIC will send you a business name renewal form and you will renew on the national register.

If your business name is due for renewal between 28 May 2012 and mid to late June 2012, you may receive your renewal notice from ASIC a bit later than you would normally expect it. If you do, you will get an extension of time in which to renew, so that you are not disadvantaged.

Fees

Once the transition to the national register is complete, fees for Queensland businesses will be cheaper. Online payment options such as BPay and credit card payment will be available. Registering an ABN will remain free.

  • New application for registration of a business name for 1 year – $30
  • Application for renewal of a business name for 1 year – $30
  • New application for registration of a business name for 3 years – $70
  • Application for renewal of a business name for 3 years – $70

Note: Fees are current as at 23 June, 2012. They are subject to change at the start of each new financial year.

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Home Owners Be Warned: OSR

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home owners be warned

We recently had a case where a client bought a unit in the inner city some seven years ago.  She claimed First Home Owner status thus receiving the First Home Owners grant (as it was back then) as well as a concession on Stamp Duty.  The Contract was subject to a Tenancy which expired 3 months after settlement date.

At the end of the Tenancy the Tenant negotiated another 3 month lease.  The Tenant subsequently moved out and our client moved in and thought everything was fine.  The client later sold the unit in 2010.  In 2011 the client received notice from the Office of State Revenue demanding that they pay additional Stamp Duty, penalties, and interest of some $12,000.00 because she did not comply with the requirements for either the First Home Owners Grant or Stamp Duty concession.

The matter is still ongoing in 2013.

On occasions, through an innocent oversight, clients may breach the requirements to qualify for a concession and that mistake can be costly.  Other times clients think they will just “take the risk” because “what are the chances of being caught?” Well the chances are quite high actually.  In this day and age the Office of State Revenue has so many aids available to them to be able to cross reference information e.g. Electoral role, taxation records, Rental Bond Authority etc that there is a high risk that you will be caught and unfortunately even innocent mistakes do not always meet with the sympathy of the Commissioner.  So be warned.

Video

Prefer a video format? Our Principal, John McLaughlin, provides an informative Law Talk episode on Tenancy

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