Logo

1300 COMLAW (266 529)

02 4704 9991

Suite 11, 354-360 High Street, Penrith NSW 2750
PO Box 1835 PENRITH NSW 2751

Daniel

by

Australia’s Court System

Australia has a Common Law legal system which means that our laws are determined by a combination of Statute (Legislation) and Case Law whereby decisions made by Judges in legal cases are used as a guide to determine what the outcome should be in subsequent cases.

From time to time we see Judges interpret these cases differently and as a result of this our legal system is constantly evolving.

Australia has a number of different Courts and Tribunals, however the Court system can be broken into four main tiers.

The Local Court

The Local Court typically deals with relatively minor criminal offences such as traffic offences, assault, some drug offences at the less serious end of the scale and other offences like this. The Local Court also has jurisdiction to hear minor civil disputes. Local Courts are typically overseen by a Magistrate.

The District Court

The District Court typically deals with more serious criminal offences such as armed robbery, serious drugs cases, serious sex offences and offences that result in the death of a person.

It is important to remember that there is quite a lot of overlap with different categories of offences between the Local Court and the District Court. The Court that will deal with these types of matters depends on the individual circumstances of each case.

The Supreme Court

The Supreme Court is the highest Court in any of Australia’s States or Territories. The Supreme Court deals with a range of serious cases ranging from contested Wills and Estates to large commercial disputes, serious criminal trials and is also home to the Court of Criminal Appeal.

Appeals

Australia has an appellant Court system. This means that if a person believes they have been unfairly treated in a Court case or the Judge may have made a mistake in determining the outcome of their case, this can be appealed to a higher Court. For example, a decision of the Local Court can be appealed to the District Court, a decision of the District Court can be referred to the Supreme Court/Court of Criminal Appeal and if all else fails, some matters can be determined by Australia’s highest Court, the High Court of Australia in Canberra.

The High Court

The High Court is the highest Court in the country. There are a very specific category of cases that may be referred to the High Court and in each case an Application must be made to the High Court as to whether or not the Court is willing to determine the matter.
Australia also has a range of other Federal Courts, Tribunals, Family Courts and Children’s Courts, all designed to address the different legal jurisdictions in our country (e.g. state vs federal) and the needs of different types of people who come into contact with our legal system (e.g. children and minors vs adults).

by

What does a coroner do?

When reporting on legal cases, the media often refers to the Coroner or coronial inquests.

The purpose of this article is to provide you with a brief understanding of what a Coroner does, and how they fit into the legal system.

The role of the Coroner is to investigate instances of death in circumstances where the death of a person is not immediately explainable. The Coroner will conduct investigations to determine how a deceased person came to die, including the circumstances surrounding their death, and also investigate the cause of fires and explosions. The Coroner is essentially a fact finder whose role is to find out the circumstances of these types of events as opposed to determining a person’s guilt or laying criminal charges.

Doctors, emergency service workers, police and other healthcare professionals are obliged to report deaths to the Coroner if they occur in the following circumstances:

  • Sudden deaths and deaths with an unknown cause.
  • Violent or unnatural death.
  • Death resulting from accident or injury.
  • The death of a person who had not been attended to by a doctor in the previous six months.
  • Deaths that occur in custody or in the course of a police operation.
  • Deaths where the identity of the deceased person is not known.
  • Deaths of children who are known to the Department of Family & Community Services.

One of the most common scenarios where a coronial inquest occurs is in the case of missing persons.

This occurs when the police officer in charge of a missing persons investigation is satisfied that they have pursued all avenues of investigation and no further enquiries can be made by them as to whether or not a missing person is alive or dead.

The Coroner will then assess all of the factual information in relation to the missing person, and make a determination as to whether or not they believe the missing person is alive or dead. If the Coroner finds that the most likely scenario is that the missing person is deceased, then the investigation will be closed unless new evidence becomes available.

A Coroner cannot find someone guilty of a crime. The Coroner can however make recommendations to governments and other agencies in relation to matters of public health and safety.

A Coroner can also refer a matter to the Director of Public Prosecutions if they form they opinion that a person involved in the coronial inquest has committed an indictable offence in connection with the death. It is then up to the Director of Public Prosecutions whether or not charges will be laid against the said person.

by

Taxation Considerations in Deceased Estates

One of the most common questions we get asked is whether or not there is an inheritance or estate tax in Australia? The short answer is no. If a person inherits assets from a deceased person that were held in the deceased person’s sole name at the date of death, there is no tax payable on this inheritance as a general rule.

There are a few exceptions to this however and it is very important that both the executor and the beneficiaries under a deceased person’s Will are aware of their taxation obligations when administering an estate.

Here are some of the scenarios where the death of a person may have tax implications:

1. Superannuation Death Benefits:

If a superannuation death benefit is paid by the superannuation fund to a beneficiary who was not a tax dependent of the deceased person at the date of death, then tax needs to be paid from these funds. This means that the beneficiary will not receive the full amount and the executor has an obligation to file a tax return and pay the necessary tax from the superannuation fund. There will be no tax payable if the superannuation death benefits are paid to a tax dependent, such as the deceased’s spouse or a dependent child.

2. Capital Gains Tax:

There is no Capital Gains Tax payable on the disposal of a deceased person’s property if the property is sold within 2 years of the date of the deceased person’s death AND it was acquired prior to 20 September 1985 or was the deceased person’s principal place of residence.

If a property is sold outside these time frames or if the property was not the deceased’s principal place of residence, then Capital Gains Tax will be payable.

3. Date of Death Tax Return:

If the deceased person was earning an income that required them to file a tax return in the years preceding their death, then it may be necessary for a date of death tax return to be completed. This is the responsibility of the executor and money should be held in the estate to satisfy any potential taxation liability.

4. Sale of Shares:

In some circumstances the sale of shares may trigger a taxation liability depending on the time the shares were acquired, the value of the shares and the date on which they are disposed of.

It is important that the executor of a deceased person’s Will employs an appropriately qualified lawyer and accountant to ensure that the tax obligations of the estate are met. If the obligations of the estate are not met, then the Executor may be held personally liable for non-payment of the taxation. The above is not an exhaustive list of all scenarios where tax may be payable from a deceased estate.

by

Family Law Property Settlement

Do I Really Need to do a Property Settlement?

This week our family law lawyer Kristy Vukovic addresses one of the most commonly asked questions in marriage and relationship breakdowns.

Following the breakdown of a marriage or de facto relationship the assets available for distribution between the parties includes all assets and liabilities, whether they are held in the sole name of one of the parties or the joint names of both. This also include property each party held in their own name prior to entering into the relationship and property acquired by each party since separation.

While a property settlement is not compulsory, it is important that a property settlement is entered into to ensure that neither party can have another bite of the cherry down the track. Put simply, if an informal agreement is reached but then one of the parties changes their mind, they may be able to approach the Court for an Order seeking a greater share of the assets.

For married couples a property settlement can be sought via the Family Court for a period of 12 months following the date of divorce. It does not matter if the parties have been separated for a significant amount of time before the divorce takes effect. In this case the value of the assets, liabilities and other financial resources are considered at the time that the Orders are made or when an agreement is reached, not at the time separation occurs. This means that all assets and liabilities acquired or accrued during the period of separation will still be considered by the Court to be part of the property to be divided as a result of the breakdown of the relationship.

For de facto couples, a property settlement can be sought via the Family Court for a period of two years following the date of separation. The same principle above applies to assets and liabilities acquired or accrued during a period of separation, that is they will be considered part of the property of the relationship for the purposes of determining who gets what.

Even if the breakdown of your relationship is amicable, you should always seek the advice of an appropriately qualified family lawyer to make sure that you get your fair share and that if agreement is reached you are protected by a legally binding property settlement.

For more advice on this contact Kristy Vukovic on 02 4704 9991 or email Kristy at kristy@completelaw.com.au.

by

Mike Baird’s Legal Mess

Mike Baird continues to be the subject of backlash in relation to his ban on greyhound racing and it appears that he is set to respond by backing down and repealing or amending the controversial new laws.

The government is said to be replacing the ban with proposed reforms including a limit on the number of greyhounds bred, a register of greyhounds that monitors their activity from birth to death, and a redesign to existing racetracks with mechanisms such as wider starting boxes to prevent injury.

Now, I must declare an interest here as I hold a minor share in a greyhound in NSW. When the ban was announced, I said that if the contents of the report that formed the basis of Mike Baird’s decision to ban the industry were true, then I believe more strongly in the humane treatment of all animals than I do in the survival of the greyhound industry. I said that serious reform was necessary, and I stand by that view. Unfortunately for Mr Baird it appears that a lack of consultation with the public, together with a flawed report on the state of the industry, has led to a rather embarrassing blight on his political record.

This is arguably not the first time the Baird government has enacted legislation without appropriate consideration of the interests of all stakeholders. Just this week thousands of people marched through central Sydney campaigning against the state’s controversial lock out laws.

While the events that led to this particular instance of law reform were absolutely tragic, they were the exception to the rule. The vast majority of people who enjoyed Sydney’s nightlife were not subject to or the perpetrators of alcohol fuelled violence.

Two years on and members of the public and an industry which Sydney had become so well known for are still up in arms about a decision made by a government who are struggling to understand what their constituents want when it comes to moral and social issues.

The overwhelming message seems to be that just because Mike Baird doesn’t spend his Saturdays betting on the dogs or embracing Sydney’s nightlife doesn’t mean that his constituents don’t.

At present, Baird’s tenure as Premier is being defined by two major law reforms. One that he is said to backflip on by the end of the week, and another that a significant portion of the population are at odds with. It will be interesting to see if people vote with their feet at the next election, and if we do have a change of government, what the legal implications of this will be.

by

Power of Attorney & Enduring Guardianship

This week we get back to basics explaining to you how Power of Attorney and Enduring Guardianship documents work.

A Power of Attorney is a document that allows you to appoint one or more people to stand in your shoes and do anything you can do in relation to your business and financial affairs if you direct them to do so or if you are incapacitated and can no longer do these things yourself. Incapacitation means that, for example you are suffering from an illness like dementia or alzheimer’s or as a result of an accident you cannot make decisions for yourself.

Your Attorney will be able to do the following things:

  1. Operate your bank accounts (deposit and withdraw money).
  2. Buy and sell real estate.
  3. Sign Contracts.
  4. Contact utilities providers.
  5. Spend money on your behalf.

An Enduring Guardianship is a document that allows you to appoint one or more people to make decisions on your behalf in relation to your health and lifestyle if through incapacity you can no longer do so yourself.

Your Guardian will be able to do the following things:

  1. Consent to the carrying out of medical or dental treatment.
  2. Consent to surgery.
  3. Decide where you live.
  4. Decide what medication you receive.
  5. Decide what other personal services (such as physiotherapy) that you receive.

When we explain Power of Attorney and Enduring Guardianship documents to our clients, we refer to them as an “insurance policy”. You are simply putting a plan in effect so that when and if you lose your capacity to look after yourself later in life or unexpectedly as a result of an accident, people you select and trust will be able to manage your affairs for you.

If you do not have a Power of Attorney or Enduring Guardianship in place and you lose your capacity to manage your affairs you cannot execute these documents retrospectively so your family and/or friends would need to make an application to the Guardianship Tribunal of the New South Wales Trustee & Guardian to be appointed as your guardian and/or financial manager. This can be a long and tedious process.

If you would like some more information about Power of Attorney or Enduring Guardianship please contact us today.

by

Acting as a Guarantor

You have probably heard of the term “Going Guarantor” before. This usually occurs when somebody requires assistance to obtain a home loan or some form of finance and the bank wants another person who holds assets to guarantee the performance of the borrower’s obligations under the Loan Contract.

The most common scenario is where a guarantor relationship arises are:

  1. When someone is buying a home and require their parents to provide their own property as collateral to secure the loan.
  2. A purchase of the property through a self-managed superannuation fund. In this scenario usually the trustee of the super fund is the borrower, however if this is a corporate trustee (a company) then the members of the fund or Directors of the trustee company are usually required to provide a guarantee.
  3. In the context of a company loan whereby a lender lends money to a company for example for business purposes, the directors of that company are usually required to provide personal guarantees.

The most important considerations for someone considering acting as a guarantor are:

  1. You are promising that the borrower will meet their obligations under the loan agreement and if they do not you may be asked by the lender to pay the amount outstanding.
  2. You are putting your personal assets at risk as if the bank cannot obtain the funds they need from the borrower they come after you and in turn your assets.
  3. You need to seek independent legal advice before deciding to act as guarantor for any person or entity.
  4. It is important that you carefully examine the financial situation of the borrower to make sure that, in your opinion, they can afford to make loan repayments.

Before entering into any contract to guarantee someone else’s debt, make sure you have received legal advice and if necessary advice from a financial planner and/or accountant.

Our solicitors can provide you with independent legal advice for all types of guarantee documents.

by

5 Things You Need to Know About Moving into a Retirement Village

If you are considering moving into a retirement or aged care facility, here are five things you need to know:

  1. In most cases you will be required to pay what is known as a refundable accommodation deposit. This is also known as an ‘accommodation bond’ or an ‘ingoing contribution’. All facilities in New South Wales are required to publish their required deposit amounts on a Government website and you should look at this before considering each facility.
  2. In addition to your initial deposit, it is likely you will have to pay ongoing fees. This will cover things like your use of the services in the facility such as buses and community centres. In addition to this you will usually have to pay for the water, electricity and other utilities you use on a user-pays basis.
  3. The amount you will have to pay is based on your income and assets. Most people think you need to sell the family home to fund an ingoing contribution into a care facility. This is not correct and in some cases you may be able to keep your home. You should always take the advice from a financial advisor who is skilled in this area and has a thorough knowledge of any implications a move will have on your aged care pension, if you are receiving one.
  4. In some facilities there may be a ‘departure fee’ payable if you leave the facility within a specified time after you move in. This means you have to be sure you want to make the move before you dive in.
  5. You may need to be assessed by an Aged Care Assessment Team before you are able to move into your facility. This will involve a number of tests, but you shouldn’t be nervous. The process is designed to make sure you have all of the facilities you need in your new home.

Making the decision to move from a family home into a retirement or aged care facility is a big one. It is absolutely critical you take the advice of a lawyer to discuss the contract/accommodation terms and a financial planner who can talk to you about how you can structure your assets so they work best for you while you make the transition.

by

Superannuation Unravelled

We often say to our clients that when getting advice about things like estate planning the advice should be three-fold – that is they should see their lawyer, accountant and financial planner.

One of the most commonly misunderstood assets a person has is superannuation.

Superannuation is essentially money held by someone else on trust for you. This means that you do not have direct control over your superannuation and cannot access it at a whim. It is designed to provide you with money to live off in your retirement.

There are 3 main trigger points that will enable access to superannuation:
  1. Retirement (note there are specific age requirements in this regard);
  2. Total or permanent disability including terminal diseases in some cases;
  3. Death.

In relation to the third point it is important to remember that your Will does not dictate what happens to any superannuation you have when you die. This must be controlled outside your Will by making a “nomination” directly with your superannuation fund. Your lawyer or financial planner should be able to assist you with this.

Your superannuation is typically made up of two components:
  1. The money you and your employer have contributed and accrued over your working life;
  2. Any insurance component that might be included in your fund.

What you also may not know is that you may be able to obtain income protection, total or permanent disability insurance and life insurance within your superannuation fund. This means that you do not need to pay for it out of your own pocket from the income on which you live but rather it can be paid from within your super fund.

Here are three tips we recommend to make sure that your superannuation is working for you:
  1. Consult your lawyer about how you can make sure your superannuation ends up with the right people when you die and include this in your estate planning process;
  2. Consult your financial planner about how you can combine multiple superannuation funds into one and potentially fund insurance from within the fund.
  3. Talk to your accountant about the taxation treatment of superannuation to make sure that you are maximising your returns.

Superannuation is a tricky beast. Most of us know that it is a fund for our future but few of us know the intricate details about how it all works. Doing some planning early means that you will avoid some potential traps such as paying too much tax, being inadequately insured or having your superannuation end up in the wrong hands down the track.

by

Transferring Property Following the Breakdown of a Relationship

Are you married or in a de facto relationship that has broken down resulting in the need to transfer real estate from one party to another?

Unfortunately marriages and de facto relationships break down all the time. If following such a relationship breakdown a house that is jointly owned needs to be transferred from one party to another as a result of a property settlement, it is important that you have proper legal advice. Under Section 68 of the Duties Act 1997, a property transfer is exempt from stamp duty if the transfer is the result of the breakup of a marriage, de facto relationship or domestic relationship.

There are important technical requirements that need to be complied with to make sure there is no stamp duty on the transaction, which will save you thousands of dollars:

  • If you are married you must have a Financial Agreement in place under the Family Law Act 1975 or some other form of written agreement evidencing the fact that the breakdown of your marriage is irretrievable and you have decided to split the matrimonial assets;
  • If you are in a de facto relationship you must have a Financial Agreement in place under the Family Law Act 1975 or Court Orders such as Consent Orders. Only a family lawyer can prepare these for you;
  • If you are in a domestic relationship you must have Court Orders in place dividing the assets of each party or a Termination Agreement in accordance with the Property (Relationships) Act 1984.

Similar rules apply in the context of transfers of property between married and de facto couples whereby you can obtain a stamp duty exemption if as a result of the transfer the property will be held by the couple as joint tenants or tenants in common and equal shares.

The most common context where this arises is where one party to the relationship already owns real estate before the relationship commences and later wishes to transfer share of the property to their partner.

If you need family law advice or property law advice, contact one of our lawyers today on (02) 4704 9991.