Faq

  • Commercial Law FAQ
    I am the Director of a Company. Is there a possibility that I will be personally liable for the debts of the Company?
    A Director has certain obligations that you will need to be aware of including ensuring that the company is not trading while insolvent (in which case a director may be personally liable for the debts of the company).  We recommend that you consult a solicitor to ensure that you are aware of the obligations imposed on you as a Director and also to discuss how you can protect yourself against potential liability.
    I am thinking of starting a business.  What structure should I use?
    The primary business structures used in Australia include:
    (a) a partnership;
    (b) a corporation;
    (c) a trust; or
    (d) a sole trader business

    Each has advantages and disadvantages. When choosing the correct form for your business the core focus should typically be on personal liability and tax implications (in relation to which we engage the assistance of tax experts).
    I want to purchase a business but do not know whether I should purchase the assets of the business or the shares in the company that owns the business. Please advise.
    This will depend both on what presents the best outcome for you from a tax perspective as well as a legal/risk liability perspective. Purchasing the shares in a holding company generally leads to a greater level of risk being assumed by a purchaser, as a purchaser would be liable for all past liabilities of the company. A carefully drawn agreement is required to mitigate your liability in this regard.
    How do I protect the assets of my business?
    This depends primarily on the nature of your business and the assets of the business.  You should also consider whether the business has any intellectual property that needs to be protected, noting that registration of a business name will not be sufficient protection for the IP of the business.
    Do I need to give a Disclosure Statement when selling my business?
    A disclosure statement prescribed by section 52 of the Estate Agents Act (1980) (Vic) is required for the sale of a small business valued at up to $350,000. If you are selling your business for a greater amount, then no disclosure statement is required.
    How does the Victorian State Budget 2017-18 affect me?
    From 1 January 2018 new laws will apply with regard to vacant residential property tax. Unless an exemption applies, owners who leave their properties vacant for more than 6 months in any calendar year will be required to pay an additional tax at a rate of 1% of the capital improved value of the property.

    Another key change relates to "off-the-plan" stamp duty concessions. From July 2017, this will only be available for home buyers who:

    • qualify for the principal place of residence stamp duty concession; or

    • are eligible for the first homebuyer stamp duty concession.

    As a result of these changes, investors will face increased stamp duty as they will no longer be entitled to receive off-the-plan concessions.

    These matters should be considered carefully in business and financial planning.
  • Entertainment Law FAQ
    What is copyright and how do I protect it?
    Copyright is a bundle of transferable rights that exist in an original creation.

    These rights are reserved exclusively to the owner and include the right to reproduce (copy), publish, perform, communicate and adapt.

    It is important to note that in order to receive the benefit of copyright protection, the works must be ‘substantial’ and unless your work is considered a “subject matter other than work”, it must also be ‘original’.

    Ideas and single words or titles are often not substantial or original enough to warrant copyright protection. Rather, it is the material expression of the idea which will be protected by copyright.

    In Australia, copyright protection is automatic once it has been recorded in material form (i.e. recorded on tape, written down in a notebook and/or photographed). There is no need for formal registration.
    Does copyright last forever?
    No.

    In Australia, copyright generally lasts for the life of the author plus 70 years.

    However, this will differ if the work was not published prior to the author’s death.

    Upon expiration of copyright protection, works become what is known as the “public domain”.
    Someone is using my copyrighted work but they have only copied 5% of it. Is there anything I can do?
    Possibly.

    Copyright infringement is subject to a qualitative test, and not a quantitative test.

    Therefore, in order to determine whether your copyright has been infringed, you should consider whether a substantial part of your work has been copied.

    A part will be substantial if is forms a crucial or essential part of the work.
    I’d like to make a film based on a book I read. What are my next steps?
    Depending on what the book is about, chances are that you will need to obtain the author (and/or their publisher’s) permission.

    An option and deed of assignment is the most common agreement to adopt once the commercial deal points have been agreed.
    What is “Chain of Title” and how can I get a legal opinion for it?
    In the film and television industries, “Chain of Title” refers to the rights in the underlying work (i.e. your script and any works that your script is based on) that the producer needs in order to develop and produce a film or television series.

    Generally government bodies and investors in the film or series will require a legal opinion on the chain of title. In order to give an opinion, you will need to provide your lawyer with all the agreements you have in place that relate to the underlying work for the film (e.g. Option and Deed of Assignment, Writer’s Agreements, Development Agreements, and any other agreements that relate to or transfer a share of copyright in the work on which the film or series is to be based).

    Your lawyer will not be able to provide an opinion until it is satisfied that all the necessary agreements are in place and owned by the correct owner.
  • Family Law FAQ
    Am I in a de facto relationship?
    A person is in a de facto relationship with another person if they are in a relationship as a couple living together on a “genuine domestic basis” but are not legally married to their partner.

    You do not need to be living together to be considered as being in a de facto relationship. This is only one of the factors that will be considered. The other factors that will be considered include:

    1. the duration of the relationship;

    2. the nature and extent of the couple’s common residence;

    3. whether a sexual relationship existed;

    4. the degree of financial dependence or interdependence between the couple;

    5. the ownership, use and acquisition of property;

    6. the degree of mutual commitment to a shared life;

    7. the care and support of children; and

    8. the reputation and public aspects of the relationship.

    You can legally still be in a de facto relationship even if one or both of you and/or your partner are legally married to or in a de facto relationship with other people.

    Although you may be in a de facto relationship, pursuant to the Family Law Act the Court only has the power to make orders for the division of property or spousal maintenance if it is satisfied that:

    1. you have been in a de facto relationship for at least two years; or

    2. there is a child of your relationship; or

    3. that one of you has made substantial contributions (financial, non-financial or as a homemaker or parent) and a failure to make an order would result in a serious injustice; or

    4. your relationship has been registered under State or Territory legislation.
    Are pre-nups binding?
    In Australia, a ‘pre nup’ is referred to as a Binding Financial Agreement (BFA). A BFA can be legally binding provided it complies with the strict requirements set out in the Family Law Act.

    Parties can enter into a BFA to record what happens to their assets and liabilities in the event their marriage or de facto relationship breaks down. A BFA can also deal with claims for spousal maintenance. Both parties must obtain independent legal advice before entering into a BFA.

    A BFA can also be entered into after marriage or the commencement of a de facto relationship.
    How do I get a Divorce?
    To be eligible to file an Application for Divorce, the Federal Circuit Court of Australia must be satisfied that your relationship has irretrievably broken down and that there is no prospect of reconciliation with your former spouse. Before filing an Application for Divorce you must have separated from your spouse for at least 12 months prior to filing an Application for Divorce. During the 12 months following separation you can resume cohabitation with your spouse for a period of no more than 3 months without having to recommence the 12 month period of separation.

    It is possible to live together under the one roof and still be considered to be separated. In this circumstance you may be required to produce evidence from neighbours, friends and family confirming that you were separated whilst living together under the one roof.

    The court has the power to grant a divorce if either party:
    1. Regards Australia as home;

    2. Intends to live in Australia;

    3. Is an Australian citizen; or

    4. Ordinarily lives in Australia and has been living in Australia for 12 months prior tothe filing of an Application for Divorce.

    The Court must be satisfied that the marriage was valid. This can be proved by way of production of a marriage certificate or, in some circumstances where it is not possible to obtain a copy of the marriage certificate, some other evidence confirming that a valid marriage exists.

    If there are children of the marriage, the court must be satisfied that appropriate arrangements have made for their care.

    If you have any further questions the Family Law team at Marshalls+Dent has a wealth of experience to draw upon in order to provide our clients with comprehensive advice in relation to any divorce related issue.
    My partner and I have separated – what happens with the children?
    In Australia the terms “custody”, “access” and “visitation” are no longer used.
     
    The living arrangements for children after separation are based on who the child “lives with” and who the child “spends time with”. The children may “live with” both parties on an equal basis or they might “live with” one parent and “spend time” with the other parent. Regardless of which parent the children live with or spend time with it is important to note that there is still a presumption of “equal parental responsibility” which relates to the long term decisions about the children’s welfare, such as education and medical decisions.
     
    If the arrangements for the children post-separation cannot be agreed between the parties, the first step is to arrange a mediation with an accredited Family Dispute Resolution Practitioner. This can be arranged through organisations such as Relationships Australia or Family Relationships Online. Alternatively there are private practitioners who can assist if required.
     
    If mediation is successful then the parties can document their agreement by way of a parenting plan and implement this immediately. It is important to note that parenting plans are not binding or enforceable but do serve as a record of the parties’ intentions which can be produced to a Court at a later date. If you have reached an agreement with respect to parenting arrangements and you would like this to be a permanent arrangement, you should seek for this to be formalised by way of Consent Orders in the Family Court.
     
    If mediation is not successful (or one party refuses to participate) then the Family Dispute Resolution Practitioner will issue a certificate pursuant to Section 60I of the Family Law Act 1975. This certificate is required prior to any party making an Application in a Family Law Court seeking orders in relation to parenting matters. If a Family Law Court is required to make a determination about the appropriate living arrangements for a child the court’s primary consideration is what is in the child’s “best interests”.
    What is spousal maintenance?
    Spousal maintenance, also known as alimony, is where one spouse assists the other to pay their living costs.  Spousal maintenance can be ordered against married and de facto parties.  Spousal maintenance can be paid periodically or in a lump sum.

    Spousal maintenance is not an automatic right.  In order to obtain spousal maintenance payments, the applicant must satisfy a two part test.  The first part of the test for spousal maintenance is whether the applicant is unable to support himself or herself from his or her own resources (not including Centrelink or voluntary assistance from friends or family).  The second part of the test is whether the other party is able to assist the applicant after paying for the other party’s own reasonable living costs.  However, it is not mandatory that a court order spousal maintenance where the other party is found to have that capacity.

    The amount of spousal maintenance will vary in each case.  The court will have regard to the pre-separation living circumstances of the parties, however, the reality in most cases is that it is more expensive to run two homes than one and both parties will have to accept some reduction in the resources available to support themselves.

    In some cases, spousal maintenance is not a suitable option to obtain financial support because the other party may not be in a good financial position.  In that case, there are other short term remedies available, such as partial property settlements or interim costs orders.
  • Property Law FAQ
    What reports should I obtain about a property before deciding to enter into a Sale contract?
    It is advisable to obtain reports before exchanging contracts so that you can make an assessment about the condition of the property. There are a number of different reports which you may obtain including a building inspection report, a pest report, a strata records report (if applicable) or a contamination report (if applicable).
    When do I pay stamp duty and how much?
    Stamp duty is calculated based on the purchase price and is payable within 30 days of the property being transferred. However, if you are purchasing a property “off the plan” you may be entitled to certain stamp duty concessions.
    What is “cooling off” period?
    It is a clause which gives the buyer a period within which to decide whether to proceed with the contract.  In Victoria, a purchaser has up to 3 business days as a cooling off period provided that the property was not purchased at auction.
    What is the difference between a retail lease and commercial lease?
    A Commercial Lease is an agreement between a landlord and tenant to occupy a commercial property such as office space, factory, warehouse, shop or industrial premises. The agreement sets out the terms of the arrangement between the landlord and tenant.

    A retail lease is a type of commercial lease that relates to retail premises. Retail leases in Victoria are, in most cases, governed by the Retail Leases Act 2003 (Vic) (“the Act”) which is generally recognized as tenant friendly legislation. 

    It is often difficult to ascertain whether the lease constitutes a retail leaser or a commercial lease, and consideration by an experienced solicitor is often required.
    If I pay a holding deposit to an agent but haven't signed a contract, is my purchase secured?
    No! If a purchaser has made an offer which has been accepted verbally, the deal is not binding until contracts are properly signed and exchanged.
  • Wills + Estate FAQ
    Who can make a will?
    Any person over the age of 18 years who has the mental capacity to understand what they are doing, can make a Will. Sometimes the Court will exercise its discretion to approve a Will made by a minor. A person who is mentally incapable of creating a Will may have a Will made for them, which then needs to be approved by the court.
    What if I don’t have a Will?
    If you die without leaving a Will or if your Will is not valid, you are said to die “intestate”. Your estate is then distributed according to the Administration and Probate Act 1958 (Vic) which sets out certain rules of distributing an intestate estate. In short, the effect of dying without a Will is that you lose control over the distribution of your estate. The rules of intestacy may mean that your estate is distributed in a manner which is contrary to your wishes. For example, if you are survived by a spouse and a child, you might wish for the whole of your estate to go to your spouse during his or her lifetime, and then to the child or children on the death of your spouse. However, the rules of intestacy require your estate to be distributed between your spouse and child/ren. This could mean that your spouse may be forced to sell the family home in order to pay a share to your child/ren. Other disadvantages of dying without a Will include:
    (a) you cannot appoint the person(s) who you wish to administer your estate;

    (b) you cannot appoint the person(s) who you wish to act as guardian for your children;

    (c) partners, stepchildren, friends and favourite charities may miss out;

    (d) your assets may be distributed in a way which places them at risk, for example, by distributing to a person who has become bankrupt or is going through a family law dispute.

    (e) your estate may not be handled in the most tax effective manner.
    I have intellectual property rights. What should I do?
    Many people do not realise that copyrights, patents and trademarks are personal property which can be distributed under a Will in the same way as any other form of personal property. Think carefully about your rights in relation to songs, patents, photographs, books, artistic works or any other intellectual property you may have. Consider how you would like these rights to be managed after you die.

    If you die without a Will, your intellectual property rights will be distributed in accordance with the rules of intestacy.

    If you have a Will, it is important that you expressly deal with the issue of intellectual property rights. Make sure to appoint the most appropriate person, business or trust to manage your intellectual property rights. If you do not do so, your intellectual property rights will be dealt with in accordance with your “residuary estate”, meaning the catchall provisions dealing with the parts of your estate which have not been specifically distributed to someone in your Will.
    I have interests under a trust and/or a company. Can I deal with these interests in my Will?
    Under your Will, you are only able to distribute assets which you personally own. A gift of an asset belonging to a trust or company will not be valid. However, a carefully drafted Will can give the desired person control of the trust or company in question which will usually allow that person to deal with the assets of the trust and/or company.
    I have been left a gift under a Will, which I don’t want. What are my options?
    Sometimes, despite the best intentions of the deceased person, a gift under a Will can have undesired financial consequences on the beneficiary.

    A gift under a Will can be disclaimed. However, the rules are complex and vary depending on the particular circumstances of each case. If you wish to disclaim a gift, it is important that you act promptly. The Courts have held that a person can be deemed to accept a gift if s/he has knowledge of the gift and does nothing. Once a gift has been accepted, it cannot be disclaimed.
  • Will Disputes FAQ
    Who is an eligible person to contest a Will for further provision in Victoria?
    Under Section 90 of the Administration and Probate Act 1958, the following are classified as eligible persons for a family provision claim:

    • spouse;

    • domestic partner;

    • former spouse;

    • former domestic partner;

    • child;

    • stepchild;

    • assumed child;

    • grandchild;

    • spouse of domestic partner of a child of the deceased who died within a year of the deceased’s death;

    • registered caring partner; and

    • member of the household

    There may be some dependency requirements which need to be established for certain classes of eligible persons. Contact our team today to discuss whether you are considered an eligible person to contest a Will.
    How long do I have to contest a Will in Victoria?
    An eligible applicant must make a claim within 6 months from the date of the grant of Probate or Letters of Administration.
    Obtaining a copy of the Will in Victoria
    Under Section 50 of the Wills Act 1997, the following people are entitled to a copy of the deceased’s Will:

    • any person referred to in the Will;

    • any person named or referred to in an earlier Will as a beneficiary;

    • spouse of the deceased;

    • domestic partner of the deceased;

    • parent, guardian or child of the deceased;

    • any person who would be entitled to a share if the deceased died intestate;

    • any parent of a minor referred to in a Will or who would be entitled to a share if the deceased died intestate; or

    • any creditor or person who has a claim against the estate and can produce evidence of such a claim.

    If you fall within any of the above categories, you can write to the Executor or Administrator of the Estate and request a copy the deceased’s Will.

    If the Executor/Administrator refuses to provide you with a copy of the Will, and a grant of Probate or Letters of Administration has been obtained, you can apply for a copy of the file from the Supreme Court of Victoria (Probate Registry) for a fee. The file will usually include the deceased’s Will, Death Certificate, Inventory of Assets and Liabilities and other pertinent documents.
    What is the process of Contesting a Will in Victoria?
    The procedure of contesting a Will depends largely on the strategy we employ in running your case. Every case is different, it all depends on the attitude of the opposing party. If the opposing party is willing to enter into settlement negotiations prior to the commencement of proceedings, then the issue of an early resolution of the matter can be explored. If the opposing party refuses to enter into negotiations prior to the commencement of proceedings, we will commence litigation on your behalf.

    Below is a rough guide of how most will dispute cases will proceed:

    Step 1: Investigate the nature of the estate and collate relevant information in support of your case.

    Step 2: Notify the personal representative of the Estate or their solicitor of your intention to commence a family provision claim.

    Step 3: Prepare your evidence in support of your case.

    Step 4: Issue proceedings for your matter to be referred to a compulsory Mediation.

    Step 5: Exchange evidence with the opposition.

    Step 6: Attend the Mediation to negotiate a settlement with the opposition. Approximately 98% of cases settle at Mediation and a Court trial is therefore not required. In the event the matter does not settle, negotiations can still take after the Mediation.

    Step 7: Prepare your case for a Court trial.

    Once you have made the decision to contest a Will, you should obtain legal advice as soon as possible to discuss your prospects of success along with any other enquiry you may have. Any one of our will dispute experts is available to assist you with your enquiries. For your no obligation assessment, simply contact our office on 1300 600 935.
    What factors does the Court take into account when contesting a Will?
    Under Section 91 A(1) of the Administration and Probate Act 1958, the Court must consider the following in making an order for provision:

    • the contents of the Will;

    • any evidence of the deceased’s reasons for making the dispositions under the Will; and

    • any evidence of the deceased’s intentions in relation to providing for the applicant.

    Under Section 91 A (2) of the Administration and Probate Act 1958, the Court may consider the following in making an order for provision:

    • the nature and length of the relationship with the
    deceased;

    • any obligations the deceased had to the applicant or the beneficiaries;

    • the size and nature of the estate and liabilities;

    • the present and future financial resources and needs of the applicant and beneficiaries of the estate;

    • any physical, mental or intellectual disability affecting the applicant or any beneficiary of the estate;

    • the age of the applicant;

    • any contribution of the applicant to the building up the estate or welfare of the deceased or the deceased’s family;

    • any benefits previously given by the deceased to any applicant or to any beneficiary;

    • whether the applicant was being wholly or partly maintained by the deceased and the extent and the basis of that dependency;

    • the liability of any other person to maintain the applicant;

    • the character and conduct of the applicant or any other person;

    • the effect of making a family provision order on the other beneficiaries; and

    • any other matter the Court considers relevant.

    Section 91(4) of the Administration and Probate Act 1958, sets out the factors the Court must consider when determining the amount of provision to be awarded to an applicant.
  • Workplace Law FAQ
    My employer has terminated my employment without warning. What do I do?
    If you have been terminated without notice or warning by your employer then you may have rights to bring an unfair dismissal claim or a general protections claim against your employer.
    I want to change roles, but I have a restraint in my current employment contract. What options do I have?
    If your employer has imposed a restraint in your employment contract (and there is a sound commercial reason for your employer to do so) but the terms of your restraint are too harsh or onerous (you still have to earn a living!), you should seek advice before signing a new employment contract or before resigning from your current position as there may be repercussions for you and you may be restrained from competing against your employer for a set period of time.
    I have been asked to sign a release by my former employer, but I do not know if I should?
    At the time your employment is terminated, either by you or your employer, it is common practice for an employer to request that you sign a release stating that you will keep everything you learnt or created during the term of your employment confidential. This may already be covered in your employment contract and may be unnecessary additional paperwork for you to sign or you may be consenting to an additional term without realizing. You should seek advice before signing a release at the termination of your employment.
    I feel that I have been bullied by my employer and/or my colleagues. What rights do I have?
    If you feel that you have been bullied by your employer and/or your colleagues, you have to consider the type of behavior and whether it is a ‘one off’ or ongoing. Is the behavior occurring in the workplace or outside the workplace? (i.e. text messages, social media). Is the behavior causing you physical, emotional and/or mental distress? You may have a claim against your employer and/or colleagues under workplace legislation and should seek advice immediately.
    I am an employer and I need to terminate the employment of an employee, but we have no employment contract/agreement. What do I do?
    Should you need to terminate the employment of an employee for any reason but do not have an employment contract, the termination will be governed generally by the National Employment Standards (NES) or an applicable award. Obtaining legal advice before terminating the employment of an employee is the best way to protect yourself!

Still unsure? Get in touch with us by making an online enquiry or call us on 9670 5000