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1300 COMLAW (266 529)

02 4704 9991

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

Daniel

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Things to Think About When Buying a Property

Buying a house is a hectic time. Usually, you only have ten or fifteen minutes at the open home to look through the property and make a decision to make an offer. Here are some tips for you to think about that might not cross your mind when you’re caught up in a bidding war or deciding whether or not you want to buy a property: The seller is required to give you the property in the same condition it was in when you first inspected it, subject to fair wear and tear. This means you should take note of any existing damage so you know what was there from the beginning.

  • The seller is required to give you the property in the same condition it was in when you first inspected it, subject to fair wear and tear. This means you should take note of any existing damage so you know what was there from the beginning.
  • You need to do a final inspection of the property to check on its condition as close to settlement as possible. Usually, people do this on the morning of settlement. That is why the above is so important as this is your opportunity to check that no significant damage has occurred before you settle. Once settlement occurs, any problems at the property become your problems.
  • Keep a look out for potentially unapproved works. Tell-tale signs are things like obvious extensions that have been closed in to make enclosed rooms, swimming pools and other structures that look different to the main house in age or condition. Remember, once settlement occurs, any illegal building work becomes your problem.
  • Your finance pre-approval is just the start. Your lender will want to value the property to make sure you are not paying too much for it so that if they need to sell because you don’t pay your mortgage they will get their money back. Make sure you are speaking with your broker throughout the whole process, as finance approval is sometimes what takes the longest in a property purchase.

There are lots of things to think about when buying a property that might slip your mind in the hustle and bustle of house hunting.
If you have any questions you’d like answered before you hit the open-home circuit, call us for an obligation free chat on 02 4704 9991.

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Minister Seeks Stronger Immigration Powers

Following on from our recent article on changes to immigration laws, our immigration law expert, Registered Migration Agent, Natalie Viet has been keeping a close eye on developments in the immigration space.

It has been reported this week that Immigration Minister Peter Dutton, with the support of Prime Minister Malcolm Turnbull and his government, are going to put legislation before Parliament to give the Immigration Minister stronger powers to override decisions made by the Administrative Appeals Tribunal. In particular, the changes will relate to the AAT’s powers to overturn decisions by Dutton’s office to reject citizenship applications and deport people.

Minister Dutton says that the current power that the AAT has, has the potential to undermine Australia’s national interest by ignoring the Immigration Department’s advice, and potentially putting the country at risk.

The Minister is arguing that the changes would allow him and his office to identify people with a criminal record and deny them citizenship accordingly, and deport rule-breakers where necessary.

If the laws are passed, people who are rejected in their application for citizenship or, for example deported, will still be able to appeal the decision to the Federal Court or the High Court of Australia.

Minister Dutton’s push for greater powers in this context comes from the view that the AAT is overturning decisions made by the government that are in the national interest. One recent example is a case where Iranian refugees reportedly travelled back to their former country for a holiday. The argument is, if they are genuine refugees why are they travelling back to the country from whence they fled?

It has been reported that the new legislation will also include extending permanent residency requirements from one year to four before people can apply for citizenship, imposing tougher English language requirements, introducing an Australian “values” test and requiring applicants to demonstrate how they have integrated into Australian society.

Immigration is at a crucial point in this country as we try to balance our rich multi-cultural history with the rise of political-populism and the desire of ordinary Australians to feel protected from the civil unrest that is prominent across so many parts of the world in the modern era.

If you need help with a visa, citizenship application or any other immigration issue, contact Natalie Viet from our office today.

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Pollies Vs The People: Pay Cuts and Pay Rises

The Remuneration Tribunal has this week decided to grant an increase in pay to public officeholders commencing in the new financial year.

Some members of society are outraged that public officers are seeing an increase to their wages at a time when the Fair Work Commission has just ruled that penalty rates will be cut for people working in fast food, hospitality, retail, pharmacy, and other industries.

This outrage is exacerbated by the fact that this will coincide with the lifting of the government’s deficit levy on Australia’s highest income earners, which will be removed from July 1, lowering the marginal tax rate to 47%.

Unfortunately however, such outrage is arguably misplaced.

Politicians wages are determined by the Remuneration Tribunal, which is an independent statutory authority that has been in existence since the 1970s. The current members of the Tribunal have very eclectic backgrounds, in public companies such as BUPA Australia Health, Westpac Bank, and BlueScope Steel as well as charities such as the McGrath Foundation, the National Heart Foundation, the Sydney Children’s Hospital and Mission Australia. Some are lawyers, accountants and other educated professionals.

The point is, the government and opposition have not simply gotten together and said “we deserve more money” – an independent body has determined so.

So why are people so angry that the people running our nation, together with its one and a half trillion dollar economy, are paid well for doing so?

It seems some of the population get so caught up in click-bait media about how terrible our politicians are that they forget that Australians enjoy universal health care, hospitals in every major city or town, a strong banking sector, independent overseers of monetary policy, universal high-quality education, access to tertiary studies, superannuation, a welfare system that supports the elderly and infirm and a genuine democracy in which people vote with their feet and keep the government accountable.

In an ideal world it would be great to have perfect infrastructure, fifty doctors in every emergency ward and enough money to fund our entire population into a comfortable retirement, but like every nation, we must work within the ambits of limited resources. Despite this, our young country, in its various political incarnations since Federation, has consistently out performed many of our global neighbours. Neighbours who have a far longer history and a far greater population than ours.

When did some of us forget that ours is the lucky country?

And on the topic of pollies wages for specifically, let’s not forget that old adage “if you pay peanuts, you get monkeys”.

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De Facto Relationships and Property Settlement

All de facto couples, including same-sex couples, have the same rights as married couples under the Family Law Act in relation to the distribution of property.
If you have recently separated from your partner, you can make an application to the court for a ‘de facto property settlement’ if you have either been with your de facto partner for a period of at least two years in total, you have a child together, you have made a substantial contribution to the property or finances of your partner, or if your relationship has been registered under a State or Territory law.

If there is a dispute as to the existence of a de facto relationship, the court will look at a variety of factors including the length of the relationship, living arrangements, the degree of financial dependence or interdependence, and whether you owned any property together, to name a few. It is important to note that you do not need to be living with your partner to establish a de facto relationship in the eyes of the Court.

You have two years from the date of separation with your de facto partner to apply to the court for a property settlement. If you have reached an agreement with your partner in relation to the distribution of your assets, you can register your agreement with the court in the form of Consent Orders. These Orders will provide you with an exemption from stamp duty if you are required to transfer any property in your asset pool.

If you are unable to reach an agreement with your partner, you can apply to the court to determine the property settlement for you. It will be compulsory, subject to some exceptions, for yourself and your partner to attend mediation before filing with the court. The court will consider several factors when deciding how to divide your assets fairly and justly, including what assets were brought into the relationship, the net value of all current assets, financial and non-financial contributions made, and any future needs (including the care of any children of the relationship).
It is important that you seek advice from a family lawyer before filing any documents in Court. For more information you can contact Kristy Vukovic or Jenna Cullen, family law solicitors from our office on 02 47049991. Kristy and Jenna can also be contacted at info@completelaw.com.au

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Australia’s Three Levels of Law Making

Every year when the federal budget comes out we hear politicians debating issues like how much money the federal budget will provide to the States, who deserves a greater share of GST revenue, and who is responsible for what when it comes to law making and regulation in Australia.

We thought we would take this opportunity to briefly explain the three levels of law making in our country. They are:

  1. Federal Parliament, who make laws via legislation that govern the whole country (for example, the Family Law Act 1975).
  2. State and Territory Parliaments, who make laws for their specific State or Territory (for example, the Crimes Act of NSW 1900).
  3. Local Councils, who make local laws known as “bylaws” for their particular region or district (for example, the laws and regulations imposed by Penrith City Council in relation to things like parking).

Different powers given to each of the Federal Parliament, State Parliaments and Local Councils are found in the Australian Constitution.

For example, Sections 51 and 52 of the Constitution set out the powers of the Federal Parliament to make laws in relation to trade and commerce, postal and telecommunication services, foreign policy, taxation, bankruptcy and insolvency, fisheries, marriage (for example, the recent and topical debate surrounding marriage equality), immigration, and defence.

The Constitution imparts power on the States and Territories to make laws in relation to things such as schools, hospitals, roads and railways, public transport, utilities (electricity or water), mining and agriculture, community services, police, prisons, and emergency services.

Local Councils are empowered with the power to make bylaws in relation to things like local roads, footpaths, street signage, waste management, parking, recreational facilities such as parks, services such as childcare and aged care, town planning, building approvals, and domestic animal regulations.

The rationale behind this three tiered approach to law making and governance is that Federal Parliament oversees the big picture, i.e. the management of issues that affect the nation as a whole, the State Parliament deals with State specific issues such as the provision of State specific health and education, and Local Councils, who are arguably best placed to determine what local communities need, deal with the smaller picture items.

 

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Republic vs Monarchy

It appears the election campaign has already unofficially begun with Bill Shorten this week announcing that should Labor win government at the next election, they will hold a plebiscite on the question of whether Australia should become a Republic.

So what does this actually mean?

Australia is currently a Constitutional Monarchy. This means that we have a Constitution that underpins our system of government (Local, State and Federal) and the laws that govern our country. It also means that technically our Head of State is a Monarch, being Queen Elizabeth II.

Historically, such Monarchs have exercised to direct political power over nations such as Australia, however in the last century this role has all but evaporated and the Monarch is simply a figurehead that performs ceremonial functions and acts on the advice of the government of the day.

The argument then becomes why should we retain the Queen as our symbolic figurehead when our nation has functioned with independence for such a long time?

The answer to this question for some is for Australia to become a Republic.

A Republic refers to a system of government under which the people who govern the nation are elected with a member of that nation serving as a Head of State, as opposed to a Monarch.

Historically in a Constitutional Monarchy, ruling parties inherit their power as opposed to being elected, and this is the main conceptual difference between the two models.

Moving to a Republic model would mean some changes that would technically remove historic links to England and enshrine our nation’s independence. For example, currently the Governor General, the Queen’s elected representative in Australia, has to approve all Australian laws once they pass through Parliament. If Australia were to become a Republic, this would no longer be required.

There are various different models that Australia could adopt. Many people think that a Republic means that we would be imitating the United States of America. This is however unlikely because under the USA’s system, their elected President has significant power over government.

In Australia we have a history of party politics whereby elected leaders, such as the Prime Minister and Opposition Leader, typically make decisions by consulting members of their party, and it is likely that any Australian Republic would reserve many of the important functions of this system.

 

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Property Ownership in New South Wales

It is very common in New South Wales for people to enter into co-ownership agreements in relation to the ownership of real estate.

Some common examples include:

  • Married or de facto couples purchasing a property together.
  • Parents and children purchasing a property together.
  • Friends purchasing a property together.

If you own a property with another person or entity, it is important that you know how co-ownership works and what happens if one of the co-owners dies.

In New South Wales there are two ways to own residential property:

  1. Tenants in Common. This means that each party owns a distinct share. For example, two parties might own 50% each, or three parties might own 33.33% each and so on. You can sell your share or gift it under your will.
  2. Joint Tenants. This means that as opposed to owning a distinct share in the property, each co-owner owns the whole of the property. This means you cannot sell your share, and upon the death of the co-owner that share will automatically pass to the surviving co-owners, even if the deceased person’s Will says something different.

These types of distinctions become particularly important if one co-owner dies, or for example in the breakdown of a marriage or relationship.

It is important if you are purchasing property with another person or people that you speak to your solicitor about the type of ownership you wish to have.

There are benefits to both types of ownership.

For example, in the context of joint tenants and a married couple, upon the death of one joint tenant the property will automatically pass to the other by registering a Notice of Death, as opposed to an expensive Application for a Grant of Probate.

Similarly, in the context of friends or unrelated parties and the ownership of property, tenants in common is a good way to have flexibility if you wish to sell your share to a third party or to other co-owners in the future.

If you are looking at purchasing a property with another person or entity, contact us to discuss the different types of property ownership you need to consider.

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Marriage Equality Back in the Headlines

The marriage equality debate is taking centre stage in mainstream media once again following the decision of Australian tennis great Margaret Court to boycott Qantas because of its support of marriage equality.

Debate has been rife in the media about Court’s treatment following her public stance against Qantas with many arguing that her right to have an opinion should be defended. Supporters of Court appear to be missing a very crucial point, however; Court threw the first punch. She is a woman of significant influence, a Christian Minister, who publicly attacked a company with millions of stakeholders arguably to push a personal, political or religious agenda.

The real debate, however, is the subject of marriage equality itself.

Perplexingly, despite the Government’s refusal to put a marriage equality bill before Parliament, there already exist numerous example of State and Federal laws that recognise same-sex relationships as being identical to heterosexual ones.

Here are some of examples of these inconsistencies:

  • The Family Law Act. The definition of a de facto relationship in one of the country’s most active pieces of legislation does not preclude same-sex marriages. In fact, family law affords parties to a same-sex union the same protections as heterosexual couples.
  • Welfare. In assessing a person’s access to welfare benefits the Government deems a same-sex de facto relationship as a valid relationship reducing welfare entitlements to each party of the relationship as if they were in a heterosexual relationship or were married.
  • Criminality. In a society where homosexuals cannot get married based on their sexuality, you might be surprised to learn that child molesters, rapists, murderers and other violent criminals are still afforded the right to marry. This is despite not only their offences but our legal system determining that they should be deprived of their most basic human right, liberty, and confined to a prison cell.
  • Social Security More Generally. A same-sex law reform package passed through Parliament in November 2008 to remove discrimination against same-sex de facto couples in areas such as taxation, superannuation, social security and other areas.

It is obvious that some of the changes resulting in these inconsistencies are positive, for example in the context of family law and social security. But it begs the questions, if we have come so far in some areas, why is the Government still petrified to legislate for marriage equality?

The only answer is that it is a political ploy to pander to the religious conservative base of the current Government. Interestingly, the ALP have emerged as vocal champions of the cause despite doing nothing to change the status quo when they were last in power up until 2013.

It’s a disenchanting state of affairs when social issues like this one are dictated by politics, not society. As for Margaret Court, she made her bed, now she has to lay in it.

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Challenging a Power of Attorney or Enduring Guardianship

This week we had a client come into our office and ask us a very simple question; what happens if I lose my capacity and my family do not think that my attorney or guardian are doing the right thing by me even though I appointed them when I was of sound mind?

We figure that a lot of our clients probably have this question.

If a person has been appointed as an attorney or guardian of a principal who subsequently loses their capacity, and they are doing things that are not in the best interest of the principal, or breaching the document in some way, there are two main avenues for a concerned party to challenging the appointment of the attorney or guardian or have it reviewed.

The first avenue of redress is to make an application to the NSW Civil & Administration Tribunal (NCAT).

NCAT has the power to review powers of attorney and make orders in relation to a person’s guardianship in a number of circumstances. This includes if there is some suggestion that the person making the power of attorney or guardianship did not have mental capacity to do so at the time that it was executed, or if there are no capacity issues but the person being appointed as the guardian or attorney is not acting in the best interests of the principal.

The reason that this comes up so often is that attorneys are not supervised, and they are not required to report to any authority. An attorney can be compelled to provide accounts of how they are spending a person’s money or disposing of their assets, however practically they essentially have free reign, particularly if a person has lost their capacity to manage their affairs.

Similarly, in the context of enduring guardianship, the person appointed by the principal who has lost their capacity essentially stands in their shoes and makes decisions for them about their health and lifestyle, even if these decisions are at odds with what the person would have decided themselves if they had the capacity to do so.

A concerned person can make an application to NCAT to revoke, suspend, confirm or vary the appointment of an enduring guardian, and NCAT will need to be satisfied that such action is in the best interests of the principal.

The second avenue for redress if you have concerns about the actions of an enduring guardian or an attorney is to make an application in the Supreme Court of NSW for review of the appointment.

Applications to the Supreme Court of NSW are arguably a much more complex and expensive process than an application to NCAT.

The benefit of NCAT is that a person is unlikely to require the assistance of a lawyer to make such an application, whereas in the case of an application to the Supreme Court of NSW it is much more difficult to achieve without the assistance of a trained solicitor.

If you have concerns that an attorney or enduring guardian is not acting in the best interests of the person who appointed them, contact us for some guidance as to what you can do to assist.

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Double Demerits for the Holidays

The inevitable holiday season “double demerits” scheme will take effect over the Easter and ANZAC period again this year.

Double demerits will apply in NSW from 13 April 2017 until 17 April 2017 and again from 21 April 2017 until 25 April 2017.

The double demerit points scheme applies to the following types of offences:

• Seatbelt offences
• Riding a motorcycle without a helmet
• Illegal use of mobile phones
• Speeding offences

This means that if you are caught committing any of these offences, twice the usual amount of demerit points will apply.

For example, if you hold an unrestricted driver’s licence and you are caught speeding in excess of 10 kms per hour over the speed limit, but less than 20 kms per hour over the speed limit, you would normally accrue 4 demerit points. For this offence, which is one of the most common, you will accrue 8 demerit points during the double demerit period.

If you accrue more demerit points than the demerit points threshold for your particular class of licence, you will be issued with a Notice of Suspension and will not be able to drive for a period of time, depending on the nature of your offence.

The demerit points thresholds are:

Unrestricted Licence: 13 Demerit Points
Professional Drivers: 14 Demerit Points
Provisional P2 Licence: 7 Demerit Points
Provisional P1 Licence: 4 Demerit Points
Learner Licence: 4 Demerit Points

Many people believe you “lose” points when you are convicted of a traffic offence, but in actual fact, you start with zero, and accrue points with each new offence. Once you hit your demerit points threshold, the RMS intervenes and suspends your license.

If you are issued with a Notice of Suspension due to the accrual of too many demerit points you can appeal to the Local Court to have your suspension overturned. The Court will take into account a number of different circumstances including your need for a licence, the need to consider public safety, the nature of your offences, and your traffic record.

If you have received a Notice of Suspension and would like to know if you are able to appeal this decision, please contact us.