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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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Mobile Drug Tests

Everybody who holds a Driver’s Licence has probably at one point or another been submitted to a Random Breath Test known as an RBT. As technology has improved, this type of testing has expanded into the area of illegal drugs and Mobile Drug Tests known as MDT’s.

Being stopped for a Mobile Drug Test typically involves the following:

  1. You will be stopped and asked to complete a breath test to test if you have any alcohol on your breath (RBT).
  2. You will be asked to wipe an MDT test stick down your tongue to see if you have any illegal drugs in your system such as ecstasy, cannabis, speed or ice.
  3. If you test positive, you will be taken to a roadside testing van or back to a police station and asked to provide a saliva sample.
  4. If your saliva sample tests positive for illegal drugs, you will be temporarily suspended from driving for a period of 24 hours. Your sample will then be sent to a laboratory for analysis.
  5. It can often take a number of months for the analysis of your sample to take place. If following the analysis the laboratory confirms that you had illegal drugs in your system at the time of the test, police will contact you and charge you with the relevant offence associated with driving with the presence of an illegal drug in your system.

You may also be subjected to a Mobile Drug Test if you are stopped because your driving is erratic and police suspect you are under the influence of illegal or prescription drugs. In some circumstances, police can also require you to undergo blood and urine tests. If you are charged with an offence relating to having drugs in your system while operating a motor vehicle you will be required to attend Court. The consequences can include loss of licence, a fine and you ending up with a criminal record.

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Negotiating Your Lease

Whether you are a small or large business most people need to lease a premises for their shop, store or office.

This can be daunting as you might be a fantastic business person but lack of experience when it comes to negotiating the terms of a commercial lease.

You should always have a solicitor to provide you with advice before signing.

To assist in the process however you may need to negotiate some terms with the real estate agent or landlord before the Lease is prepared.

These are the things you should think about when negotiating:

  1. Term of the Lease
    This is usually expressed in years. Make sure you don’t over commit with the amount of years in the initial term as you will be locked into the Lease for this period.
  2. Option
    Some Leases will have an option for you to extend the Lease after the expiry of the initial term. If you want an option, you should negotiate this from the start.
  3. Rent
    Rent is usually payable monthly but expressed as a yearly amount. Make sure you check whether or not the proposed rent is inclusive of GST.
  4. Outgoings
    Sometimes you will need to pay money in addition to your rent for things like waters usage and cleaning. Make sure you are aware of these before you enter into your Lease.
  5. Rent Review
    A review of your rent will normally take place on each anniversary of the Lease. This will usually involve an increase to your rent in reference to the Consumer Price Index, current market rent or an increase by a fixed percentage.
  6. Bank Guarantee/Security Deposit
    You usually need to hand over a cheque or a bank guarantee that acts as a security bond. This is in addition to your rent is like a bond that you would pay in a normal residential tenancy agreement.
  7. Maintenance and Repair
    A lot of leases require you to perform maintenance and repair on things like air conditioning. You will usually also have to refurbish the premises at the end of your lease.

If you are a landlord you need a Lease prepared or a tenant who needs some advice on a Lease, contact one of our lawyers today to set up a meeting so we can assist you.

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Cory Bernardi Likely to Defect

Liberal Senator Cory Bernardi is set to resign from the Australian Liberal Party this week to start his own political party aimed at championing what he calls “conservative” values.

You might have heard of Cory Bernardi before. Senator Bernardi resigned as Tony Abbott’s Parliamentary Secretary in 2012 under a wave of outrage about comments he made suggesting a link between same sex marriage and bestiality.

Senator Bernardi inferred that legalising marriage equality may lead to polygamous marriages and “consensual sexual relations between humans and animals”, a disgusting inference in the writer’s view, and at a hazardous guess, the view of most ordinary Australians.

That said, what does Bernardi’s defection mean for the government’s ability to make new laws?

In a nutshell, the role of the Senate and its Senators is to act as a system of checks and balances to make sure the government is not abusing its power. One of the main functions of the Senate is to review legislation proposed and passed by the House of Representatives, usually the house in which a sitting government holds a majority, and decide whether the legislation should be passed into law.

This means that when a sitting government wishes to propose a law (for example the recently failed bid to enact a plebiscite on the issue of marriage equality), a majority of the members of the House of Representatives must first vote for it to proceed to the Senate for a final stamp pf approval. Once in the Senate, a majority of Senators must then vote for the law to pass and become a law.

While some might argue that Senator Bernardi’s defection is a positive because his extreme views are not representative of the average Australian, it means that the Liberal Party now have one less vote in the Senate they could have otherwise relied on to pass laws and push their political agenda.

Senator Bernardi will still hold a vote, however instead of voting with the Liberal Party by default as has typically been his modus operandi, the Government will now have to woo him to get his vote to assist them to pass legislation in an already contentious and unpredictable Senate.

Ultimately, his defection makes it harder for a government who is already battling against the slimmest of majorities in the House of Representatives to pass law and govern effectively. The natural result of this is potentially less law reform and an arguably hamstrung government that can’t govern on its own terms.

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Problems Arising Out Of Disputed Wills

The legal area of Wills and Estates is fraught with difficulty. The main reason is that disputes often arise as to the contents of deceased persons’ Wills, and the people who wrote the Wills are not around to explain what they intended and the reasons why they did what they did when drafting their Will.

The most common forms of dispute regarding Wills arise out of the following:

  1. Family provision claims – also known as contesting a person’s Will.
  2. Testamentary capacity cases – where someone is arguing that the deceased lacked the mental capacity to make a Will.
  3. Constructions suits – where the terms of the Will are ambiguous or confusing and the Court’s assistance is required to interpret them.

Another common type of dispute that arises in the context of deceased Estates is that of constructive trust or resulting trust. This usually occurs where a deceased person has promised someone a portion of their assets, sometimes in return for things like domestic assistance and care, but this promise is not contained in their Will and therefore there is no record of it. The law says that people who have been made such promises have the right to enforce these promises if they can be proven.

This week we attended a mediation in a deceased Estate matter where we were able to secure an award for our client in the hundreds of thousands of dollars. This dispute involved a deceased person who left a Will leaving his entire Estate to a friend and some charities and leaving nothing to his three adult sons.

If the matter had have proceeded to a hearing in the Supreme Court of NSW because no settlement could be reached, the legal fees would have most likely exceeded $250,000. This is money that would have been taken directly from the pockets of beneficiaries to pay for Lawyers and Barristers.

We were able to assist in avoiding these costs and putting more money in our client’s pocket by coming to a mutually beneficial settlement.

These types of family disputes are not often motivated simply by financial gain. There are many personal and emotional issues attached that it takes an experienced Lawyer to navigate.

Contact us today if you are involved in a some type of Estate dispute and we will tell you if we can help you free of charge.

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MP’s Entitlements

As the list of Federal MPs being dragged into the “entitlements scandal” increases, public outrage is increasing as the rumour mill hums along churning out figures, some correct and others not, about what MP’s are entitled to and what they are paid.

To find out exactly what MPs are entitled to, the general public can access the Parliamentary Remuneration and Entitlements 2016 Update dated 9 June 2016 from the online portal to the parliamentary library.

We have prepared a snapchat shot for you below:

  1. The base salary for parliamentarians from 1 January 2016 was $199,040.
  2. Ministers such as the Prime Minister, Deputy Prime Minister, Treasurer and other Cabinet Ministers also receive an increased salary as a result of their extra workload.
  3. MPs and Senators also receive an electorate allowance to enable them to pay for an office out of which they run their operation. These amounts vary from approximately $30,000 to approximately $50,000 depending on the size of their electorates.
  4. MPs and Senators are also entitled to a range of other entitlements including what has become the focus of much of the recent scrutiny, being travel. This entitles MPs and Senators to domestic and overseas travel for themselves, and in some situations members of their family, in carrying out their duties.

It has been alleged that a number of MPs are abusing this system to pay for things like private holidays with their families and other personal activities.

Naturally, if this is correct, this can have significant legal and political ramifications. On a federal level, the resignation of Health Minister Sussan Ley and the firestorm of controversy that lead to the departure of former MP Peter Slipper are two recent examples. On a state level, the case of Karyn Paluzzano, former Member for Penrith, is a local example of how far these allegations can go. Paluzzano was accused and found guilty of corruption in relation to falsified claims for public money to cover the costs of staff to which she was not entitled. Paluzzano was sentenced to 12 months home detention following her plea of guilty to offences surrounding the misappropriation of public money.

There is no doubt that if MPs are legitimately rorting the system, they should suffer the consequences. We should be careful not to engage in a witch hunt too quickly though. Irrespective of your political inclinations, it is important to remember the old adage that “if you pay peanuts, you get monkeys”. The writer of this column is certainly not advocating for MP’s and Senators to be allowed to misappropriate public money for personal gain. However, greater analysis is needed before we all hit the outrage button as a result of click-bait media.

A good example is Senator Matthias Corman, currently in the spotlight for claiming travel entitlements for trips to Broome with his family. The man works in Canberra five days a week as Finance Minister, and it only takes a Google search to learn that he is a Senator from Western Australia. Why shouldn’t he be entitled to spend some time with his family in an around his official duties? It remains to be seen if his use of entitlements have been legitimate, but the community at large need to “watch this space” before jumping to conclusions. After all, no matter who you vote for, these people are charged with running the country. A responsibility that most of us cannot comprehend.

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Compulsory Land Acquisitions Make Way for Airport

The government have begun knocking on doors to acquire land for the huge Northern Road extension, and for other infrastructure projects associated with the construction of the Badgery’s Creek Airport.

We have been involved in a number of transactions stemming from the controversial project, including acting for long term tenants who were forced to leave the land they had rented for multiple decades to make way for construction and demolition, and acquisitions of small and large parcels of land from long-term land owners.

Typically the process works like this:

  1. You will be contacted by someone on behalf of the government or Roads & Maritime Services indicating that they wish to sit down and talk to you about acquiring some or all of your land.
  2. You will be issued with a Proposed Acquisition Notice (PAN) which is the first formal step in the compulsory acquisition process.
  3. Your PAN will contain information about the price they wish to offer you for your property and any other conditions that are attached to the acquisition.
  4. You will then have an opportunity to accept the government’s offer, or to raise any concerns or objections you might have in relation to the value of your land or the terms of the acquisition.

The transaction will then go one of two ways:

  1. Once agreement is reached, the Solicitors acting for the government or entity acquiring your land will prepare a Contract to document the agreement. This Contract will set out the terms of the deal, together with any subdivision that may be necessary if the purchasing entity is only purchasing a portion of your land.
  2. If agreement cannot be reached, the government or entity proposing to acquire your property may take compulsory acquisition action. This may include court action if no agreement can be reached.

Naturally it is better for all parties involved if agreement can be reached and a deal struck that appropriately reflects the value of your property. In assessing the value of your property multiple factors are taken into account including loss of use (if any), the effect that the acquisition will have on the rest of your property, whether or not the acquisition will affect any dwelling on the property, and a range of other factors.

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Eleven New Magistrates for NSW

The NSW Attorney General last week announced that the NSW Local Court is going to receive a much needed injection of resources with the appointment of 11 new Magistrates in 2017.

This is critically important for the Local Court which hears a range of different matters in different jurisdictions.

The Local Court is typically broken up into two arms; criminal and civil.

The criminal arm of the Local Court deals with people who have been charged with offences such as traffic offences including speeding, drink driving and licence offences, as well as criminal offences such as assault, domestic violence matters, theft and a myriad of other offences.

The civil arm of the Local Court deals with civil disputes, usually between people or corporate entities who are involved with some kind of dispute over money. This can include everything from contract disputes to unpaid employment entitlements and other debt enforcement action.

The role of the Magistrate is to hear the evidence put before the Court and make a determination as to the guilt/liability of the accused and decide on an appropriate penalty. In Australia we have a combination of statute (legislation) and common law (cases that set legal precedents) that guide a Magistrate as to how they should analyse the facts before them and decide a person’s punishment. In the civil context the focus is not so much on punishment, but rather on remedying the loss suffered by the aggrieved party. This is typically achieved by ordering the offending party to pay a sum of money to the party whom the Magistrate determines has won the case.

Of the 11 new Magistrates being appointed, seven are reported to specialise in criminal law and four are reported to specialise in civil law. They come from a range of different backgrounds including private legal practice, corporate legal practice, and the Bar.

The Local Court processes thousands of matters and hosts thousands of people every week.

The addition of the new Magistrates will improve efficiency in the Local Court, meaning that civil and criminal matters can be dealt with to completion more quickly. The obvious benefit of this is that it reduces the burden on victims, defendants and witnesses, as well as the police force.

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Major Changes to Strata Laws

New strata laws will come into force in New South Wales in November 2016. The motivation behind the reforms is to modernise the laws so they reflect the needs of people who own strata townhouses or apartments in the modern era.

Strata refers to ownership by a person or entity of a portion of a property, with the rest of the property being known as the common property.

Each strata plan is different, but traditionally an individual owner will be responsible for the maintenance and upkeep of the interior of their unit and things like appliances, furniture and general wear and tear. All of the owners will be jointly responsible to look after the common property and the condition of the buildings themselves, including things like driveways and gardens.

Interestingly, approximately 25% of the New South Wales population lives in strata accommodation.

Some of the important changes include:

  1. Adopting modern technology to conduct meetings, for example, electronically.
  2. A requirement that by-laws be reviewed annually to make sure they are compatible with the lifestyle of the owners of the units within a complex.
  3. Allowing tenants to participate in strata meetings.
  4. Allowing Owners Corporations to team up with local Councils to allow parking officers into strata complexes to issue fines for improper parking.
  5. Allowing Owners Corporations to make orders banning smokers in strata complexes.
  6. Simplifying the process of conducting minor cosmetic renovations such as hanging pictures, filling cracks, installing safety rails and other similar minor alterations so that permission is no longer needed by special resolution or by-law.
  7. Compensation to people who are promised unrealistically low strata levies by developers/sale agents in the purchase process.
  8. Greater flexibility to allow Owners Corporations to hire and fire strata managers to ensure they are getting bang for their buck.

These laws are the most significant change in strata legislation in decades, and are a much needed update as more and more people are living in strata complexes.

If you are thinking about purchasing a strata unit and aren’t sure how this differs to regular freehold land, contact us today to discuss.

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Have You Been Left Out of a Will?

Did you know that you only have 12 months from the date of a deceased person’s death to challenge their Will?

This type of action is known as a claim for “family provision”, colloquially known as “contesting a Will”.

Here are some other things you might not know about challenging a person’s Will:

  • You must be an “eligible person” such as the spouse, defacto, child or dependent of the deceased in order to make a claim.
  • The Court will take into account things like your financial means/assets and liabilities, your relationship with the deceased person, any gifts you received from the deceased person during your lifetime, and any contribution made by you to the deceased person’s Estate in determining your matter.
  • You can make a claim against a person’s Estate even if you have been left something. Being provided with a gift under a person’s Will does not stop you from making a claim for further provision, so long as you can demonstrate that you are in financial need, and that you satisfy the other requirements of the law in making this type of claim.
  • As an Executor of a Will, it is your job to defend any claims against a deceased person’s Estate. This means that if you are an Executor, you will be named as the defendant in any of these types of proceedings.
  • All of these types of matters are conducted in the Supreme Court of NSW, the highest Court in the State.
  • There are a number of legal landmines that need to be navigated, whether you are a plaintiff making a claim against an Estate, or an Executor defending a claim against an Estate.

We have extensive experience in Estate litigation and would be happy to sit down with you and discuss your options free of charge if you think you might be eligible to make a claim, or if you are an Executor defending a claim against an Estate.

Call us today on 4704 9991 or email info@completelaw.com.au to set up an appointment.

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What Happens if I am Arrested?

Police have a lot of powers not afforded to ordinary citizens in carrying out their work. The most well-known power is the power to arrest.

A Police Officer can arrest you if:

  • They catch you committing an offence.
  • They have reasonable grounds to suspect you have committed an offence.
  • You have breached bail conditions.
  • There is a warrant out of your arrest.
  • You are breaching the peace.
  • They need to serve an AVO on you.

Interestingly private citizens are also afforded some of these powers, known as a “citizens arrest”. An ordinary citizen can arrest you if you are committing an offence or you have committed an offence.

There are certain obligations that police have when they are arresting you. For example, they should tell you that you are under arrest, tell you why you have been arrested and the police officer should also indicate to you his or her name and the local area command in which they work.

Police officers are allowed by law to use as much force as is necessary to arrest you. Unreasonable force by a police officer can constitute assault however the best way to ensure that you are not victim to any type of unnecessary force is to cooperate with police if they are arresting you.

It is important that you remember that if you are resisting arrest, even if you think you are not guilty of the offence of which you are accused, you are committing an offence. Further, if you are violent while resisting arrest you could also be charged with assaulting police.

After being placed under arrest, you will be taken to a police station. It is at this point that you have the right to contact a lawyer if you wish to do so. Police are only required to wait for a period of two hours for your lawyer to arrive.

Being arrested is an incredibly stressful process even if you are guilty of the offence of which you are accused. The best course of action is to cooperate with police and contact a lawyer as soon as possible who can advise you of your rights.