New REIQ Residential Contracts for Queensland

Buying Off the Plan – A Good Plan to Get Into the Market?

Joint Tenants or Tenants in Common?

Buying at Auction – What to Know

Domestic Violence and The Law

Estate Planning Matters

Retail Leasing in Queensland – Why a tenant needs a lawyer

The Merger of the Family Courts – What does it mean to you?

Things to Consider When Buying into a Retirement Village

Death of a Vendor – What Now?

Parenting Orders – What You Need to Know

The Dangers of a DIY POA

Transferring property after divorce

Finance – Off The Plan Purchases

Stamp Duty Concessions – What Can You Claim?

Can You Force Customers To Wear Face Masks?

Protected: Disputes With The ATO

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Inheritance Received Post Separation – Is it mine or ours?

Springwood Family Lawyers | Dangers of DIY Power of Attorney

What Isolation Plans Will You Make?

No More Excuses. You Need a Will

Springwood Lawyers | Terminating Contracts Due to the Coronavirus (COVID-19)

Springwood Conveyancer | What is e-conveyancing and PEXA?

First Home Loan Deposit Scheme | What is it? Are you eligible?

The new first home loan deposit scheme (FHLDS) aims to give first home buyers a leg up in the property market by reducing the deposit amount required to purchase a property.

First homebuyers were previously slugged with lenders mortgage insurance (LMI) if they did not come up with at least 20% deposit.

The First home loan deposit scheme works by providing a guarantee to first home buyers to purchase a property with as little as 5% deposit opposed to the onerous 20% required by most lenders. On a $500,000.00 property, that’s a whopping $75,000.00 difference!

 

The catch

Places are limited! The Australian Government has reported nearly 3,000 potential first homebuyers have registered with the banks since the 1st of January for the scheme. The remaining 7,000 places will open from the 1st February 2020. It is important that you have your finances in order, have spoken to a financier (i.e bank) and have started looking at potential properties.

 

Can you apply?

If you are a first time homebuyer then you are most likely eligible for the scheme. The Australian Government website  has a handy eligibility tool to see if buyers qualify for the scheme. In a nutshell, you will need to be a first home buyer and:

·         Pass the income test;

·         A prior property ownership test;

·         A deposit requirement; and

·         Pass the owner occupier requirement.

 

Next steps

Before you sign a contract of make an offer on a property, make sure you get legal advice to protect your interests. At McLaughlin & Associates Lawyers we have a team dedicated to residential conveyancing. We can assist you with pre-purchase contract conditions and also make sure the contract you sign protects your interests. See our page on Conveyancing for more info and guides for buyers and sellers.

 

Written by Dominic Doan, Commercial and Property Solicitor

 

For further information or to book in a consultation please contact us at business@mclaughlinlawyers.com.au or phone us on 07 3808 7777.

 

Have any questions? Send us an email:

Read some of our other residential conveyancing articles:

·          Buying a home and claiming PPR

 

We Can’t Agree on Our Property Settlement

Consumer Guarantees

consumer guarantees

 

All Australian traders, whether online or running a bricks and mortar operation, must comply with Australian trading laws and this includes consumer guarantees. This includes laws on consumer guarantees. Since 1 January 2011, businesses must provide consumers with guarantees for most consumer goods and services they sell.

Each circumstance is unique, and we are here to listen to your story and find a solution or answer, contact us.

Goods

Consumers have the right to ask for a repair, replacement or refund if the goods sold are:
• faulty
• unsafe
• look unacceptable, and
• do not do what they are supposed to do.

In each case this is according to what someone would normally expect for the type and cost of the particular goods.

Consumers also have this right if the goods sold do not:
• fit the purpose discussed with the shop owner
• match the description provided
• match the sample or demonstration model provided
• have the extra qualities or performance that were promised before the sale.

Services

Consumers have the right to ask for a repair, replacement or refund if the services you sold:
• were not delivered completely or with adequate care and skill
• did not fit the purpose or give the results that had been agreed to
• were not delivered within a reasonable time.

These rights arise from the consumer guarantees under the Australian Consumer Law that provide consumers with a right to seek remedies where there are problems with goods or services. Other laws apply for products and services you bought before 1 January 2011.

What types of businesses must offer consumer guarantees?

Consumer guarantees apply automatically to most products and services supplied by businesses in retail, service, online and hire situations.

No refunds

  1. It is illegal for businesses to tell customers or show signs stating that they do not under any circumstances give refunds.
  2. Must businesses automatically give a repair, replacement or refund? No. This will depend on the consumer showing proof of purchase and whether or not there is a major problem with the product or service.
  3. Proof of purchase can include a receipt, bank statement, a completed warranty card or a lay-by statement.

Guarantees and the ACCC

guarantees and the accc

Fully defined statutory guarantees apply to all products and services sold in Australia. While there are nine specific rights regarding goods and three regarding service, the essential rules with relation to guarantees are as follows:

  • Goods must be of acceptable quality (taking account of their price and nature) and fit for the purpose they were designed for.
  • Goods must match any description made of them and any sample shown. If you’re buying a product for a particular purpose, make sure you discuss this explicitly with the salesperson. If in doubt, get it in writing.
  • Spare parts and servicing must be available for products for a “reasonable time” after sale.
  • Services must be carried out with due care and skill, and achieve any result specified… If a plumber promises to fix a leak and the leak continues, the onus is on the plumber to repair it.

There are no explicitly specific periods specified for how long goods must be functional for, since this varies enormously depending on the product category. However, as the ACCC has made clear with recent discussions with phone companies, products provided as part of a contract like mobile phones must remain operable and serviceable for the duration of those contracts.

Businesses can extend these rights — for instance by offering a more specific or longer warranty — but they can’t reduce or ignore them. A business might reasonably argue that the conditions applying to an item sold as a “second” are different, but they can’t opt out altogether. A business cannot display a sign stating “no refunds”. As a consumer, you wouldn’t be able to complain about a stitching flaw in a “seconds” pair of jeans, but if they fell apart the first time you put them on, you’d likely be entitled to ask for a replacement or refund, since they don’t meet their intended purpose at all.

The law also clarifies how problems are to be remedied. If the issue with a product is “major” — defined by the ACCC as “one that is so severe that a reasonable consumer would not have bought the good or service if they had fully understood the problem with it” — then the consumer can choose whether they want a refund, replacement or repair and the vendor can’t object to their choice. For less severe problems, that decision can be made by the supplier.

Taking Children Overseas

taking children overseas

A child travelling overseas with a parent can often be an area of concern between separated couples especially when one party has their family roots in a different country. It is illegal to travel overseas with a child under the age of 18 years if Parenting Orders are in place, without permission of all the parties to the Order or an Order of the court permitting travel.
What are your options:

1. SEE A SOLICITOR:  Speak to your Solicitor so that they may communicate on your behalf with your ex and resolve travel arrangements and particulars quickly and amicably.

2. MEDIATION: In the instance communication via solicitors fails invite the other party to Mediation in order to address the issue. If the matter is not resolved at Mediation, the Registered Family Dispute Resolution Practitioner will give you a 60 I Certificate (Family Dispute Resolution Certificate). This Certificate is required to bring an Application before the Court.

3. COURT: Courts are often approached as a last resort. Lodge an Application with the Court in relation to Parenting Matters. You should give yourself enough time, at least 6 months, before your proposed holiday to lodge your Application and have the matter heard and addressed.

A. In order to determine the outcome of an Application the Court takes the following into account:

(i) Length of the proposed holiday

(ii) Effect on the child due to time away from the non-travelling parent

(iii)  Any threat or concerns for the safety of the child or children travelling

(iv)  Whether the Court is convinced that the party travelling will return to the Australian jurisdiction

 

B. The party intending to travel might need to provide the following evidence to the Court:

(i) Proposed length of stay and the purpose of travel

(ii) Benefits, if any, to the child/children from this travel

(iii) Itinerary of proposed travel, copy of the airline tickets, flight details and accommodation details to be provided to the Court and the other party prior to departure

(iv)  Places where the child/children will be staying, contact details, address, e-mail addresses and phone numbers

(v)  Proposed method or methods of communication between the child/children and the non-travelling parent

(vi) Evidence of ties between the travelling parent to Australia such as employment, business interests, close family ties, house, property or assets

(vii) Whether the intended country of travel is a signatory to the Hague Convention on Child Abduction

 

The Court is often concerned about the fact that the party travelling with the children might not return to Australia. The Court might in that instance require a surety to be provided by the parent intending to remove the children from the jurisdiction and to ensure the safe return of the child/children.

The sum for the surety is determined so as to be realistically enticing enough to ensure the return of the travelling parent and sufficient enough to enable the non-travelling parent to take measure for the recovery of the children in the event of an unfortunate turn of events.

If you are intending to travel with your children steps need to be taken well in advance of your departure date so that you are not stopped at the Airport.

Personal Properties and Securities Act

personal properties and securities act

Are you ready for the PPSA?

New legislation called the Personal Property Securities Act (“PPSA”) came into effect recently.  It will dramatically alter the way we deal with personal property and the way in which security over personal property can be protected.

“Personal property” is any property (except real estate and fixtures to land) such as machinery and equipment, motor vehicles, book debts, stock, trademarks and patents etc.

The PPSA will regulate any “security interest” in personal property.  If you do not protect your rights you risk losing your interests in that property.

For example you could lose:

  • priority to another creditor; or
  • title to your property if it is left in the possession of someone else (eg. if they sell it or if they go into liquidation etc ).

How does the PPSA affect you?

If you answer yes to any of the questions below, you should contact us to discuss how the PPSA may affect you and what steps you should take to protect your interests.

  • Do you own personal property that could be in someone else’s possession for longer than 90 days ?
  • Do you consign goods to other people to sell ?
  • Do you manufacture and sell goods ?
  • Do your conditions of sale state that you retain ownership until you are paid (i.e.
    retention of title clause)
  • Have you granted “fixed and floating” charges or have they been granted to you ?
  • Do you include charging clauses in your standard documents to give you security for an obligation ?

Registration

A single national online register of Personal Property Securities interests called the PPS Register (“PPSR”) has been established.

It is essential to register your security interests in order to obtain priority. By registering your security interest you can prevent another person taking ownership of your goods.

Any delay in registering your security interest or inaccuracy in the registration could be disastrous.  New security interests created must be registered quickly and in some cases may be registered before the transaction is completed.

 

Questions?

If you have any questions about this blog post, do not hesitate to contact McLaughlin & Associate Lawyers via call or email.

Alternatively, you may visit our office in Springwood.

Don’t Be Threatened Into Doing Nothing

dont be threatened into doing nothing

 

So often we come across situations where a client has been reluctant or hesitant to proceed with a separation, property settlement, or children’s matter because of threats or blackmail from their partner.

Quite often a husband will threaten his wife that he will show she is “an unfit mother” because of something she did in her youth or something which the wife and husband both participated in consensually during the course of their marriage.  A spouse/partner may quite often feel that they would suffer public humiliation over their escapades and that it will end up splashed across the newspapers and over the internet.  We have had innuendoes about sexual escapades, social drug taking, and shoplifting levelled against clients in the hope that they will cave in.

Often a client will relate to us that their partner has threatened that if they don’t give in to their demands or if they don’t get what they want they shall bring up blah, blah, blah or that if he or she tries to leave they will never see their children again because they will let it be known that blah, blah, blah.

Two things prevent this bullying from succeeding.  Firstly, we as lawyers have a duty to the Court not to unnecessarily raise irrelevant, unnecessary, or intentionally inflammatory or embarrassing matters which have no relevance or bearing on the case at hand.  So therefore what a person may have done in their youth or may have done in the past will not and should not be raised unless it has some relevance to the property settlement and/or children’s issues and invariably they don’t.  In fact the Court takes a particularly dim view of a party who seeks to use or capitalise on such issues.

Before a trial commences each of the parties make submissions to the Court to strike out any offending or irrelevant material from the record.  If successful, reference cannot be made to that issue in the course of the trial and the Judge does not take it into account.

Secondly, there is a ban imposed on anyone publishing the names, address, or employment of a party in Family Court proceedings.  It extends to witnesses and to anything which may lead to the identification of a party or witness to the proceedings.

So even if for some reason the circumstances of a case were published in the papers it would be done in such a way that the parties identities are not revealed.  You may have seen newspaper reports of Family Court proceedings where the parties are referred to as, K v K or C v C.  That is to protect the identity of the parties.

Section 121 of the Family Law Act is unequivocal in stating that:

1.   A person who publishes in a newspaper or periodical publication or by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this act that identifies:

(a)   A party to the proceedings;

(b)   A person who is related to or associated with the party to the proceedings or is, or is alleged to be in any other way concerned in the matter to which proceedings relate; or

(c)  A witness in the proceedings;

is guilty of an offence punishable upon conviction by imprisonment for a period not exceeding 1 year.

It’s amazing the relief that I have seen from the faces of clients who may have been held to ransom for years by belligerent, bullying, overbearing, and intimidating partners when they realise that their “little secret” is not going to end up on the front page of the morning paper and that they can stare their partner down thus allowing them to pursue their full rights and entitlements without fear.