KMB Legal | Blog for every day legal issues

How Much Compensation Can You Claim for a Personal Injury in Queensland?

Thu, 17 Sep 2026 13:05:45 GMT

One of the first questions people often ask after an accident is: “How much compensation could I receive?”

There is no fixed amount for a particular injury in Queensland.

Two people can suffer apparently similar injuries but have significantly different claims because the impact on their lives, employment, future earning capacity and treatment needs may be very different.

For example, an injury that prevents a tradesperson from returning to physical work may have very different financial consequences from the same injury sustained by someone who can continue working without any reduction in income.

The value of a personal injury claim therefore depends on the individual circumstances rather than simply the diagnosis.

What Does Personal Injury Compensation Cover?

Depending on the type of claim and the circumstances, compensation may include several different categories of loss, commonly referred to as heads of damage .

These can include:

pain and suffering;
past loss of income;
future economic loss or reduced earning capacity;
medical and rehabilitation expenses;
future treatment expenses; and
in appropriate cases, care and assistance.

The rules applying to each category can differ depending on whether the claim involves a motor vehicle accident, public liability accident or workplace injury.

Pain and Suffering

Compensation for pain and suffering is generally referred to as general damages .

It recognises the non-financial consequences of an injury, which can include pain, suffering and loss of quality or enjoyment of life.

In Queensland, general damages for many personal injury claims are assessed using an Injury Scale Value (ISV) system.

An injury is assigned an ISV within the applicable range according to matters including its nature and severity. The ISV is then used to determine the amount of general damages under the applicable legislation and regulations.

For Queensland CTP claims, MAIC confirms that the ISV scale runs from 0 to 100 and that not every injury is sufficiently serious to attract an award of general damages.

The amount for pain and suffering therefore cannot reliably be determined simply by looking up the name of an injury.

Past Loss of Income

If an injury prevents you from working, causes you to reduce your hours or affects the work you are able to perform, compensation may potentially include income you have already lost.

Evidence may include:

payslips;
tax returns;
PAYG records;
employer records;
records of overtime;
business financial records for self-employed people; and
medical evidence concerning your capacity to work.

MAIC confirms that CTP compensation can include wages lost because a person has been unable to work as a result of their injuries.

The assessment becomes more complicated for people whose income fluctuates, business owners, self-employed people or those whose career trajectory was expected to change.

Future Economic Loss

For significant injuries, future economic loss can be one of the largest components of a personal injury claim .

The question is not simply whether you are currently working.

An injury may leave someone capable of returning to employment but nevertheless reduce their ability to:

work the same hours;
perform overtime;
undertake physically demanding duties;
obtain promotions;
continue in their existing occupation;
compete for other employment; or
remain in the workforce for as long as otherwise expected.

Queensland legislation specifically permits consideration of matters including a person's age, work history, actual loss of earnings and permanent impairment when future earnings cannot be precisely calculated.

This is why a person who has returned to work may still potentially have a claim for future economic loss.

Medical and Rehabilitation Expenses

A personal injury claim may also include reasonable expenses caused by the injury.

Depending upon the circumstances, these might include:

GP and specialist appointments;
physiotherapy;
psychological treatment;
medication;
surgery;
rehabilitation;
occupational therapy;
medical equipment; and
travel associated with treatment.

Future treatment can also be relevant where medical evidence establishes that further treatment will probably be required.

For CTP claims, MAIC expressly identifies both past and future treatment and rehabilitation as matters that can form part of a claim.

Care and Assistance

A serious injury may affect a person's ability to perform ordinary activities such as cleaning, cooking, gardening, personal care or looking after children.

Depending upon the applicable legislation and whether statutory thresholds are satisfied, compensation may potentially be available for necessary care or assistance.

The precise requirements are technical and vary according to the type of claim, so the fact that family or friends have provided assistance does not automatically mean that compensation will be payable for that care.

It is nevertheless useful to keep a record of significant assistance required because of an injury.

Why Can Two People With the Same Injury Receive Different Compensation?

Consider two people who each sustain a significant knee injury.

One works primarily at a desk, returns to full-time employment and has relatively limited future treatment requirements.

The other works in a physically demanding occupation and can no longer perform the duties required for that work.

Although the medical diagnosis may be similar, the second person's injury may produce considerably greater economic loss.

Other factors that can affect compensation include:

age;
occupation;
pre-injury income;
employment history;
severity of the injury;
permanent impairment;
prognosis;
future treatment requirements;
capacity to return to work;
pre-existing medical conditions;
need for care and assistance; and
whether the injured person contributed to the accident.

This is why meaningful assessment requires considerably more information than the name of the injury.

Does Permanent Impairment Determine How Much Your Claim Is Worth?

Permanent impairment can be important, but it is not necessarily the same thing as the overall value of a common law claim .

An impairment assessment measures the permanent medical effect of an injury according to prescribed criteria.

A damages claim considers broader consequences, particularly the person's financial loss and future circumstances.

This distinction is particularly important in workers’ compensation matters.

WorkSafe Queensland explains that common law damages can include pain and suffering, past and future economic loss and past and future medical costs. The assessment can take account of factors including the worker's age, remaining working years, impairment, income and employment prospects.

Does Being Partly at Fault Reduce Compensation?

It can.

If an injured person contributed to the accident through their own negligence, compensation may be reduced to reflect their share of responsibility.

For example, MAIC confirms that a person who was partly responsible for a motor vehicle accident may still make a CTP claim, but their compensation may be reduced.

Similar principles concerning contributory negligence can arise in other common law personal injury claims.

The effect depends on the circumstances of the particular accident.

Are Motor Vehicle Accident Claims Calculated Differently?

Motor vehicle accident claims in Queensland are made through the CTP scheme where another driver was wholly or partly responsible.

Compensation may potentially include:

treatment and rehabilitation;
past and future loss of income;
general damages for qualifying injuries; and
certain legal costs and disbursements.

Each claim is individually assessed according to the injury and the claimant's circumstances.

What About Public Liability Claims?

Public liability claims can arise where an injury was caused by another party's negligence in a place such as a shopping centre, restaurant, business premises, private property or public area.

The value of the claim depends not only on the injuries and resulting loss but also on liability.

If liability is disputed or the claimant is found partly responsible for the accident, this can affect the amount ultimately recovered.

What About Workplace Injuries?

Workers’ compensation requires an important distinction between statutory compensation and common law damages .

Statutory benefits can include weekly compensation, medical and rehabilitation expenses and, where applicable, lump-sum compensation for permanent impairment.

A common law claim is different. It requires the worker to establish that the employer breached its duty of care and that the breach caused the injury and loss.

Where a common law claim succeeds, damages may include past and future economic loss, pain and suffering and medical expenses.

Can an Online Compensation Calculator Tell You What Your Claim Is Worth?

Online compensation calculators should be treated cautiously.

A calculator cannot properly assess matters such as:

whether another party is legally liable;
competing medical evidence;
the likelihood of future surgery;
whether you will return to your previous occupation;
your future career progression;
the effect of an injury on a business owner's income;
pre-existing conditions;
contributory negligence; or
the strength of the available evidence.

At best, an online calculator may illustrate certain components of a claim. It should not be treated as a reliable valuation of an individual personal injury matter.

When Can the Value of a Claim Be Properly Assessed?

It is often difficult to accurately assess a personal injury claim immediately after an accident.

The medical position may still be developing.

Further treatment or surgery may be required. It may not yet be known whether the person will return to their previous employment or whether the injury will cause permanent restrictions.

MAIC advises CTP claimants that they do not need to rush to settle and should consider how their injuries may affect them in the future.

This is important because a settlement ordinarily represents the final resolution of the claim.

Once the longer-term medical and financial consequences are reasonably clear, the claim can generally be assessed more meaningfully.

Evidence Is Important When Assessing Compensation

The value of a personal injury claim needs to be supported by evidence.

Depending upon the claim, this may include:

medical records;
specialist reports;
independent medical assessments;
tax returns;
payslips;
employment records;
business financial statements;
receipts for expenses;
treatment records; and
evidence concerning future employment capacity.

Keeping appropriate records from an early stage can therefore be important.

There Is No “Average” Personal Injury Payout

It can be tempting to compare a claim with another person's settlement or an amount reported online.

Those comparisons can be misleading.

A settlement involving a particular injury does not establish what another person with the same diagnosis should receive.

The proper question is not simply:

“What is this injury worth?”

It is:

“What losses has this injury caused this particular person, and what losses is it likely to cause in the future?”

That distinction is central to understanding personal injury compensation.

Speak With a Gold Coast Personal Injury Lawyer

If you have been injured and would like to understand how compensation may be

assessed in your circumstances, KMB Legal can advise you about the applicable Queensland

claims process and the factors relevant to your claim.

We assist clients with motor vehicle accident, public liability and workplace
injury claims across the Gold Coast and Queensland.

Free 30-minute initial telephone consultation.

BOOK A TELEPHONE CONSULTATION

Workers’ Compensation Claims in Queensland: What Injured Workers Need to Know

Thu, 17 Sep 2026 12:39:04 GMT

A workplace injury can affect much more than your ability to perform your usual job. It may result in time away from work, medical treatment, rehabilitation and uncertainty about your future earning capacity.

Queensland's workers’ compensation scheme provides benefits to eligible workers who sustain work-related injuries or illnesses. Most Queensland employers are insured through WorkCover Queensland, although some larger employers are licensed as self-insurers.

There are two distinct types of claims that injured workers should understand: statutory workers’ compensation claims and common law damages claims .

They have different purposes and requirements.

What Is a Statutory Workers’ Compensation Claim?

A statutory claim provides eligible injured workers with compensation and support without requiring them to establish that their employer was negligent.

Depending on the circumstances, statutory compensation may include:

weekly compensation for lost wages;
medical and hospital expenses;
rehabilitation expenses;
certain travel and other costs; and
lump-sum compensation where an injury results in permanent impairment.

This means that an injury can potentially qualify for statutory workers’ compensation even where the employer did nothing wrong.

That is different from a common law damages claim, where employer negligence must generally be established.

What Types of Workplace Injuries May Be Covered?

Workers’ compensation is not limited to sudden physical accidents.

Depending on the circumstances, work-related injuries or illnesses can include:

Physical injuries

These may arise from falls, lifting, machinery, repetitive work, vehicle accidents or other workplace incidents.

Aggravation of existing conditions

An existing medical condition does not necessarily prevent a claim if employment significantly contributes to an aggravation or worsening of the condition.

Psychological or psychiatric injuries

Workers’ compensation can also extend to certain work-related psychological or psychiatric injuries, subject to the requirements of the legislation.

Diseases and illnesses

Some diseases or illnesses caused or contributed to by employment may also fall within the workers’ compensation scheme.

Eligibility depends upon the particular circumstances and the statutory requirements applying to the injury.

What Should You Do After a Workplace Injury?

If you are injured at work, appropriate medical treatment should be the immediate priority.

You should also report the injury to your employer as soon as reasonably possible.

When making a workers’ compensation claim, you will generally need a work capacity certificate from an appropriate medical practitioner. WorkSafe Queensland states that a claim application is not valid without a completed work capacity certificate.

The certificate records matters including your diagnosis, treatment needs and capacity for work.

It is important that the certificate identifies all injuries you want the insurer to assess as part of the claim.

How Do You Make a Workers’ Compensation Claim?

For most Queensland employees, a statutory claim is lodged with WorkCover Queensland.

If your employer is a licensed self-insurer, the claim is instead dealt with through that employer's workers’ compensation insurer or unit.

A valid claim generally requires both:

an application for compensation; and
a work capacity certificate.

The insurer will then assess matters such as your employment status, how and where the injury occurred and whether employment was a significant contributing factor to the injury.

How Long Do You Have to Lodge a Workers’ Compensation Claim?

Time limits apply.

WorkSafe Queensland currently states that a statutory claim will usually need to be lodged within six months of the date you were first seen by a doctor for the injury , although an insurer may accept a reasonable excuse for delay in appropriate circumstances.

It is generally preferable not to wait.

Early notification can also make it easier to obtain workplace records, witness evidence and other information about how an injury occurred.

What Happens if Your Claim Is Accepted?

If your statutory claim is accepted, the benefits available will depend on your circumstances.

Weekly compensation

If your injury prevents you from working or reduces your ability to work, you may be entitled to weekly compensation for lost wages.

The amount and duration of those payments depend upon the applicable workers’ compensation legislation and your individual circumstances.

Medical and rehabilitation expenses

The insurer may meet reasonable expenses associated with treatment and rehabilitation for the accepted workplace injury.

This can include appropriate medical treatment and rehabilitation directed towards recovery and return to work.

Return to work

Rehabilitation and return to work are important components of the Queensland scheme.

Depending on your medical capacity, this might involve returning to your normal duties, temporarily working reduced hours or undertaking suitable alternative duties while recovering.

What if Your Injury Causes Permanent Impairment?

Where an injury results in permanent impairment, you may be assessed for a degree of permanent impairment (DPI) .

Permanent impairment generally refers to an impairment that has stabilised and is unlikely to improve further with treatment or rehabilitation.

The DPI assessment is used to calculate any statutory lump-sum compensation that may be offered.

This stage can be particularly important because the decision you make about a lump-sum offer may affect your ability to pursue a common law claim.

Be Careful Before Accepting a Lump-Sum Offer

One of the most important distinctions in Queensland workers’ compensation law concerns the worker's assessed DPI.

If your DPI is less than 20% , WorkSafe Queensland states that you generally need to choose between:

accepting the statutory lump-sum offer; or
rejecting the offer and pursuing a common law damages claim.

If a worker with a DPI below 20% accepts the lump-sum offer, they generally cannot subsequently pursue common law damages for that injury.

If the DPI is 20% or more , a worker can generally accept the statutory lump-sum payment and still pursue a common law claim.

Different impairments cannot simply be added together to reach the 20% threshold.

For that reason, obtaining advice before accepting or rejecting a Notice of Assessment and lump-sum offer can be particularly important.

What Is a Common Law Workers’ Compensation Claim?

A common law claim is different from the statutory compensation process.

In a common law claim, the worker seeks damages on the basis that the employer failed to take reasonable care for the worker's safety and that this negligence caused or contributed to the injury.

The worker must establish fault.

WorkSafe Queensland describes this as proving that the employer breached its duty to provide a safe work environment and that the breach caused the worker's injury and resulting loss.

When Might an Employer Be Negligent?

Whether an employer has been negligent depends upon the circumstances.

Issues may include allegations concerning:

unsafe systems of work;
inadequate training or supervision;
unsafe equipment or machinery;
failure to identify or address workplace hazards;
inadequate staffing;
unreasonable workloads;
failure to respond appropriately to known risks; or
failure to provide appropriate equipment or assistance.

The fact that an accident occurred at work does not automatically mean the employer was negligent.

The particular circumstances and available evidence need to be considered.

What Can Be Claimed in a Common Law Claim?

Where negligence and loss are established, damages may potentially include compensation for:

Pain and suffering

Compensation may be available for the impact of the injury.

Past economic loss

This can include income lost because of the injury.

Future economic loss

Where an injury reduces a worker's ability to earn income in the future, damages may potentially reflect that reduced earning capacity.

Medical and treatment expenses

Past and future medical expenses associated with the injury may also form part of a damages claim.

The amount of compensation depends on the individual worker's injuries, employment history, income, age, prognosis and future capacity.

What if You Were Partly Responsible for the Accident?

A worker's own actions can be relevant to a common law claim.

If the employer establishes that the worker failed to take reasonable care for their own safety and this contributed to the injury, the worker's damages may be reduced for contributory negligence .

This does not necessarily mean the claim fails entirely.

What Is the Time Limit for a Common Law Claim?

Different time limits apply to statutory and common law claims.

WorkSafe Queensland states that a Notice of Claim for Damages generally needs to be submitted within three years of the injury .

However, workers should not assume they can simply wait until close to the three-year deadline.

There are procedural steps that may need to occur before proceedings, and delay can make ev idence more difficult to obtain.

What if Your Workers’ Compensation Claim Is Rejected?

If an insurer rejects a statutory claim, that is not necessarily the end of the matter.

There are review processes available under Queensland's workers’ compensation scheme, but strict time limits can apply.

The appropriate next step will depend upon the insurer's decision and reasons.

If you disagree with a decision, it is sensible to obtain advice promptly rather than allowing a review period to expire.

Do You Need a Lawyer for a Workers’ Compensation Claim?

A lawyer is not required simply to lodge a statutory workers’ compensation claim.

Many straightforward statutory claims are managed directly between the injured worker, their medical practitioners and the insurer.

However, legal advice may become particularly important where:

the statutory claim has been rejected;
there is a dispute about whether an injury is work-related;
the worker has suffered a significant or permanent injury;
a Notice of Assessment and lump-sum offer has been received;
there is a potential common law negligence claim;
the injury affects the worker's long-term earning capacity; or
an important time limit is approaching.

The distinction between statutory compensation and common law damages is particularly important because decisions made during the statutory process can affect later rights.

Statutory Compensation and Common Law Damages Are Different

The simplest way to understand the distinction is:

Statutory claim: focuses primarily on whether you have sustained a compensable work-related injury.

Common law claim: requires you to establish that your employer was negligent and that the negligence caused your injury and loss.

An injured worker may therefore be entitled to statutory workers’ compensation without necessarily having a viable common law damages claim.

Conversely, where employer negligence has caused a significant injury and financial loss, common law damages can become an important consideration.

Speak With a Gold Coast Personal Injury Lawyer

If you have been injured at work and are unsure about your workers’ compensation rights,

KMB Legal can advise you about your circumstances and the options that may be available.

We assist clients with workplace injury and other personal injury claims

across the Gold Coast and Queensland.

Free 30-minute initial telephone consultation.

BOOK A TELEPHONE CONSULTATION

Public Liability Claims in Queensland: What You Need to Know

Thu, 17 Sep 2026 12:08:58 GMT

Accidents can occur almost anywhere — in a shopping centre, restaurant, hotel, park, footpath, sporting facility or another person's property.

Where an injury is caused by the negligence of another person, business, organisation or public authority, it may give rise to what is commonly referred to as a public liability claim .

Public liability claims in Queensland are generally governed by the Personal Injuries Proceedings Act 2002 (Qld) and principles contained in the Civil Liability Act 2003 (Qld).

Importantly, suffering an injury on someone else's premises does not , by itself, establish a right to compensation. The circumstances of the accident and whether another party failed to take reasonable precautions against a foreseeable risk are important considerations.

What Is a Public Liability Claim?

A public liability claim is a claim for compensation arising from an injury allegedly caused by another party's negligence in circumstances other than, for example, a motor vehicle accident or workplace injury governed by their own statutory schemes.

Claims can arise in many different circumstances, including:

slips, trips and falls;
unsafe or defective flooring;
wet or slippery surfaces;
poorly maintained stairs or walkways;
inadequate lighting;
accidents in shopping centres or retail premises;
injuries at restaurants, cafés or hotels;
accidents at sporting or recreational facilities;
injuries in parks or public areas;
accidents on private property; and
injuries associated with defective or poorly maintained premises.

Each claim depends on its particular facts.

Does an Accident Automatically Mean Someone Was Negligent?

No.

This is one of the most important points to understand about public liability claims.

An occupier or property owner is not necessarily liable simply because somebody was injured on their premises.

Broadly, a negligence claim requires consideration of whether there was a relevant duty of care, whether that duty was breached and whether the breach caused the injury and resulting loss.

Under Queensland's civil liability legislation, whether reasonable precautions should have been taken against a risk involves consideration of matters including the probability of the harm occurring, the likely seriousness of the harm, the burden of taking precautions and the social utility of the activity creating the risk.

The circumstances therefore need to be examined carefully.

Examples of Public Liability Claims

Slips and Falls

A person may slip on liquid, food, grease or another substance on the floor of a supermarket, shopping centre, restaurant or other premises.

The important question is not simply whether the floor was slippery.

Issues may include how long the hazard had been present, what inspection and cleaning procedures were in place, whether those procedures were followed and whether reasonable precautions could have prevented the accident.

Trips and Uneven Surfaces

Claims can also arise from uneven pavement, damaged flooring, unexpected changes in surface level or other trip hazards.

Again, the existence of a defect does not automatically establish liability. Its nature, visibility, location and the circumstances surrounding the accident may all be relevant.

Accidents in Public Places

Injuries may occur in parks, playgrounds, pathways and other public spaces.

Where a council or another public authority is involved, additional statutory principles may affect the assessment of liability.

These claims can therefore require consideration beyond the ordinary occupiers' liability principles.

Accidents at Commercial Premises

Businesses that invite customers or visitors onto their premises may have obligations to take reasonable care for their safety.

Depending upon the circumstances, relevant evidence could include inspection procedures, maintenance records, incident reports, CCTV footage and previous complaints or incidents.

What Do You Need to Prove?

Public liability cases are highly fact-specific, but a claimant will generally need to establish that another party was negligent and that the negligence caused the injury.

In practical terms, questions may include:

Was there a foreseeable risk of injury?

A risk generally needs to be more than merely theoretical or insignificant.

Should reasonable precautions have been taken?

This requires consideration of what a reasonable person in the circumstances would have done.

Did the failure to take reasonable precautions cause the injury?

There must be a sufficient causal connection between the alleged breach and the injury suffered.

Queensland's Civil Liability Act 2003 contains statutory principles concerning breach of duty and causation that apply to many negligence claims.

What Should You Do After an Accident?

The evidence available immediately after an accident can become extremely important later.

Where possible, consider:

reporting the accident to the owner, occupier or manager;
obtaining a copy or reference number for any incident report;
taking photographs and video of the exact location;
photographing the hazard or condition that caused the accident;
obtaining names and contact details of witnesses;
seeking appropriate medical treatment; and
keeping records of expenses and time away from work.

If the accident occurred at commercial premises, it may also be important to request that relevant CCTV footage be preserved.

CCTV can be overwritten or deleted in the ordinary course of business, so this should be addressed promptly.

What if the Accident Occurred on Council Property?

An injury on council-owned or controlled land does not automatically mean the council is liable.

Claims involving councils and other public authorities can involve additional considerations under Queensland legislation.

For example, issues can arise concerning the authority's functions, resources, knowledge of the alleged hazard and the reasonableness of requiring particular precautions.

Evidence may include maintenance and inspection records, previous complaints, work orders, photographs and records relating to the condition of the location.

This is one reason early investigation can be particularly valuable in claims involving public land.

What if You Were Partly Responsible?

A claimant does not necessarily need to be entirely free from responsibility for an accident.

However, if the injured person failed to take reasonable care for their own safety and that contributed to the injury, contributory negligence may arise.

Queensland law allows damages to be reduced to reflect the claimant's share of responsibility.

For example, depending on the circumstances, questions may arise about whether a hazard was obvious, whether warnings were present or whether the claimant was reasonably attentive to their surroundings.

This does not automatically defeat a claim. It may instead affect the amount of compensation recoverable.

What Compensation Can Be Claimed?

The compensation available depends on the circumstances and consequences of the injury.

A claim may potentially include compensation for matters such as:

pain and suffering;
past and future loss of income or earning capacity;
medical and rehabilitation expenses;
future treatment expenses;
care and assistance; and
other losses caused by the injury.

The value of a claim cannot reliably be determined simply from the diagnosis.

For example, the same physical injury may have very different financial consequences for two people depending upon their occupations, recovery, age and ongoing capacity to work.

How Long Do You Have to Make a Public Liability Claim?

Strict time limits apply.

Under the Personal Injuries Proceedings Act 2002 (Qld), Part 1 of the Notice of Claim generally needs to be given by the earlier of:

nine months after the incident giving rise to the injury, or nine months after symptoms first appear if they were not immediately apparent; or
one month after the claimant first instructs a law practice to seek damages and the proposed respondent has been identified.

The Act also contains further procedural requirements after Part 1 is given.

A late notice does not necessarily mean a claim is automatically lost, but additional requirements can arise and a claimant should not assume that delay is inconsequential.

Separately, the Limitation of Actions Act 1974 (Qld) generally provides a three-year limitation period for commencing proceedings for damages for personal injury.

The distinction between these deadlines is important: the three-year limitation period does not mean you should wait three years before taking action.

How Does a Public Liability Claim Work?

Before court proceedings are commenced, Queensland's PIPA legislation establishes a pre-court claims process.

This generally involves giving the proposed respondent a formal Notice of Claim containing information about the accident, injuries and claimed loss.

The respondent then has obligations to respond to the notice. The legislation provides processes for exchanging information, investigating the claim and attempting to resolve the dispute before court proceedings.

Many claims are resolved without proceeding to trial.

However, whether a claim settles and the appropriate amount of any settlement depend upon issues including liability, medical evidence, economic loss and the longer-term consequences of the injury.

Why Early Evidence Matters

Public liability claims can be particularly dependent upon evidence concerning the condition of a location at the time the accident occurred .

A spill may be cleaned.

A broken tile may be repaired.

A pathway may be resurfaced.

CCTV footage may be overwritten.

Staff may leave a business and witnesses may become difficult to locate.

Obtaining photographs, witness details and other evidence early can therefore make a significant difference when the circumstances of an accident are later investigated.

Do You Need a Lawyer to Make a Public Liability Claim?

Whether you obtain legal representation is a personal decision.

However, public liability matters can involve complex questions concerning negligence, causation, contributory negligence, identification of the correct respondent, medical evidence and assessment of damages.

Obtaining advice early can also help identify applicable notice requirements and limitation dates and determine what evidence should be preserved .

Speak With a Gold Coast Personal Injury Lawyer

If you have been injured in a public place or on someone else's property,

KMB Legal can advise you about your circumstances, the applicable Queensland claims process

and the steps involved in pursuing a personal injury claim.

We assist clients with public liability and other personal injury claims

across the Gold Coast and Queensland.

Free 30-minute initial telephone consultation.

BOOK A TELEPHONE CONSULTATION

How Long Do You Have to Make a Personal Injury Claim in Queensland?

Thu, 17 Sep 2026 11:33:39 GMT

If you have been injured in an accident, it can be easy to assume that you have three years to decide whether to make a personal injury claim.

While Queensland law generally imposes a three-year limitation period for commencing court proceedings for personal injury , this is only part of the picture.

Depending on how your injury occurred, you may be required to notify an insurer or another party much earlier .

Different requirements apply to motor vehicle accidents, public liability claims and workplace injuries. Missing a deadline can significantly affect your rights, so it is important to identify the applicable time limits early.

Is There a Three-Year Time Limit for Personal Injury Claims in Queensland?

As a general rule, section 11 of the Limitation of Actions Act 1974 (Qld) provides that an action for damages involving personal injury must be commenced within three years from the date the cause of action arose .

However, the three-year limitation period should not be treated as a three-year period in which nothing needs to be done.

Most personal injury claims involve pre-court procedures that must be commenced considerably earlier.

The applicable process depends on the circumstances in which you were injured.

Motor Vehicle Accident Claims

If you are injured in a motor vehicle accident in Queensland and another driver was wholly or partly at fault, you may be entitled to make a claim under Queensland's compulsory third party (CTP) insurance scheme.

A Notice of Accident Claim Form generally needs to be lodged by the earlier of:

nine months after the accident ;
if the injury was not immediately apparent, nine months after symptoms first appeared; or
one month after first consulting a lawyer if you engage the lawyer to handle the claim.

These notice requirements operate in addition to the limitation period for commencing court proceedings.

What if the vehicle cannot be identified?

A much shorter period applies where the at-fault vehicle cannot be identified, such as in some hit-and-run accidents.

In that situation, a Notice of Accident Claim Form to the Nominal Defendant generally must be lodged within three months of the accident . MAIC also warns that strict deadlines apply and a claim may be rejected if they are missed.

Because of these shorter deadlines, it is particularly important to obtain advice promptly following an accident involving an unidentified vehicle.

Public Liability Claims

Public liability claims can arise where someone is injured because of the alleged negligence of another person, business, organisation or public authority.

Examples can include:

slips and falls;
accidents in shopping centres or retail premises;
injuries at restaurants, hotels or other venues;
accidents in parks or other public places;
injuries occurring on private property; and
accidents arising from allegedly unsafe premises.

Many Queensland public liability claims are governed by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).

Under PIPA, Part 1 of a Notice of Claim generally must be given by the earlier of:

nine months after the incident or, if symptoms were not immediately apparent, nine months after symptoms first appeared; or
one month after the claimant first instructs a law practice to act in seeking damages , once the proposed respondent has been identified.

If notice is given outside the prescribed period, the obligation to give notice continues and the claimant generally needs to provide a reasonable excuse for the delay .

This is separate from the general limitation period for commencing proceedings.

Workers' Compensation Claims

Work-related injuries involve another set of time requirements.

For a statutory workers' compensation claim, WorkSafe Queensland states that there is usually a time limit for lodging the claim, often within six months of when the worker was first seen by a doctor for the injury , unless a reasonable excuse for delay is accepted by the insurer.

A statutory workers' compensation claim is also different from a common law damages claim against an employer.

Different procedural requirements apply to common law claims, and the general personal injury limitation period remains relevant. Queensland's workers' compensation legislation expressly preserves the operation of the limitation period under section 11 of the Limitation of Actions Act .

For that reason, it is important to distinguish between:

a statutory workers' compensation claim , which may provide benefits such as weekly compensation, medical expenses and rehabilitation; and

a common law damages claim , which may potentially arise where an employer's negligence caused or contributed to the injury.

What if You Miss a Personal Injury Claim Deadline?

Missing a notice deadline does not necessarily have the same consequence in every type of claim.

For example, under PIPA, a late Notice of Claim may still be given, but a reasonable excuse for the delay will generally need to accompany it.

Other deadlines can have much more serious consequences.

Whether a late claim can proceed depends on the legislation governing the particular claim, the deadline that has been missed and the individual circumstances.

For this reason, you should not assume either that:

“I have three years, so there is no urgency,”

“I have missed a notice deadline, so I no longer have a claim.”

Legal advice should be obtained about the particular circumstances.

Can the Three-Year Limitation Period Ever Be Extended?

There are circumstances in which Queensland law permits limitation periods to be extended or where different rules apply.

Whether an extension is available is highly dependent upon the facts and the applicable legislation.

Special considerations can also arise in claims involving children and people under a legal disability. For example, MAIC states that for children the usual limitation period generally does not begin until the child turns 18, meaning court proceedings can generally be commenced up to the child's 21st birthday if required. Notice requirements should nevertheless be addressed as soon as possible.

There are also particular categories of claims for which ordinary limitation rules have been modified or removed by legislation.

If a limitation date is approaching or may already have expired, specific legal advice should be obtained rather than relying on a general time-limit calculation.

Why You Should Not Wait Until the Deadline

There are practical reasons to investigate a personal injury claim early even where the ultimate limitation date is some time away.

Evidence can become more difficult to obtain as time passes.

CCTV footage may be deleted. Witnesses may become difficult to locate. Accident scenes can change. Records may become harder to obtain and memories of an incident can fade.

Obtaining advice early can also help identify:

who may be legally responsible;
which legislation applies;
the correct insurer or respondent;
the applicable notification requirements;
what evidence should be preserved;
whether further investigations are required; and
the relevant limitation date.

Early advice does not mean that a claim needs to be settled quickly. In many cases, it is important to understand the longer-term consequences of an injury before the value of a claim can properly be assessed.

Every Personal Injury Claim Is Different

There is no single deadline that safely applies to every personal injury matter.

The relevant time limits depend on factors including how the injury occurred, who may be responsible, the type of claim being pursued and the legislation that applies.

A motor vehicle accident, workplace injury and public liability accident may therefore involve very different procedural requirements even though each is broadly described as a personal injury claim.

Speak With a Gold Coast Personal Injury Lawyer

If you have been injured and are unsure about the time limit applying to your claim,

obtaining advice early can help ensure important deadlines are identified and your rights are protected.

KMB Legal assists clients with personal injury claims across the Gold Coast and Queensland,

including motor vehicle accident, public liability and workplace injury matters.

Free 30-minute initial telephone consultation.

BOOK A TELEPHONE CONSULTATION

What to Do After a Motor Vehicle Accident in Queensland

Thu, 17 Sep 2026 09:46:30 GMT

A motor vehicle accident can happen without warning. In the days and weeks afterwards, you may be dealing with injuries, medical appointments, time away from work and uncertainty about what to do next.

Queensland has a compulsory third party (CTP) insurance scheme that may provide access to treatment, rehabilitation and compensation where a person is injured in a motor vehicle accident caused wholly or partly by another driver.

Understanding the steps to take after an accident can help protect your position and ensure important evidence and time limits are not overlooked.

1. Seek Medical Attention

Your health should be the immediate priority following an accident.

Some injuries are obvious at the scene, while others may become apparent later. Even if your symptoms initially seem minor, consider obtaining appropriate medical assessment.

Medical records can also become important evidence in a CTP claim because they document your injuries, symptoms, treatment and recovery.

Continue to follow appropriate medical advice and attend recommended treatment or rehabilitation. Under Queensland's CTP scheme, reasonable and appropriate treatment and rehabilitation may be funded where the relevant requirements are met.

2. Record Details of the Accident

If you are able to do so safely, gather as much information as possible about the accident.

Useful information can include:

the other vehicle's registration number;
the other driver's name and contact details;
the driver's licence details;
details of any witnesses;
photographs or video of the vehicles and accident scene;
the location, date and time of the accident;
road and weather conditions; and
details of any conversations at the scene.

Photographs taken shortly after an accident can be particularly useful because vehicles may later be repaired and the accident scene may change.

Keep copies of documents relating to the accident and your injuries together.

3. Report the Accident to Police

Queensland Police require certain traffic crashes to be reported, including crashes involving an injury requiring medical attention, a driver who fails or refuses to provide required details, or a vehicle that has to be towed.

There is another important reason to report an accident if you have been injured: a traffic crash must be reported to police to make a Queensland CTP insurance claim.

You should obtain the traffic incident number, commonly referred to as the QP or QPrime number , as this is required for the Notice of Accident Claim Form. If the accident has not already been reported and you intend to make a CTP claim, MAIC advises reporting it at a police station so that a QP number can be obtained.

4. Keep Records of Your Injuries and Expenses

A personal injury claim is not determined simply by the fact that an accident occurred. The consequences of the injury for the particular person are important.

Keep records of matters such as:

medical appointments and treatment;
medications;
rehabilitation and physiotherapy;
out-of-pocket medical expenses;
travel associated with treatment;
time away from work;
payslips and evidence of lost income; and
assistance you require because of your injuries.

It can also be useful to keep a simple record of how your injuries affect your work, household activities and everyday life.

5. Understand Queensland's CTP Scheme

CTP insurance is attached to registered motor vehicles in Queensland.

If another driver was wholly or partly responsible for an accident that caused your injuries, a claim will generally be made against the CTP insurer of the vehicle that caused the accident .

You do not necessarily need to have been driving a vehicle yourself. Depending upon the circumstances, claims may involve drivers, passengers, pedestrians, cyclists and other road users.

If you were partly responsible for the accident, that does not necessarily prevent you from making a claim. However, your compensation may be reduced to reflect your contribution to the accident.

If you were entirely at fault, or nobody else was at fault — for example, some single-vehicle accidents — compensation ordinarily will not be available through the fault-based CTP claim process.

6. Lodge a Notice of Accident Claim

A Queensland CTP claim is commenced by lodging a Notice of Accident Claim Form with the relevant CTP insurer.

MAIC currently allows injured people to register through the Queensland CTP portal or use the Notice of Accident Claim Form for non-fatal injuries. Supporting information is required, and the completed claim form must be printed and signed in the presence of an eligible witness.

If you know the registration number of the vehicle that caused the accident, the relevant CTP insurer can be identified through MAIC.

What If the Vehicle Was Unregistered or Cannot Be Identified?

There are special arrangements where the vehicle responsible for an accident was unregistered or cannot be identified , including some hit-and-run accidents.

In those circumstances, a claim may be made against the Nominal Defendant rather than an ordinary CTP insurer.

Different and particularly strict time limits can apply to these claims, so early advice is important.

What Are the Time Limits for a CTP Claim in Queensland?

This is one of the most important parts of the process.

For most claims, the Notice of Accident Claim Form must be lodged by the earlier of:

nine months after the accident , or nine months after symptoms first appear if the injury was not immediately apparent; or
one month after first consulting a lawyer about the possibility of making a claim.

If the at-fault vehicle cannot be identified, notice to the Nominal Defendant generally must be given within three months of the accident . If notice is not given within nine months in an unidentified-vehicle claim, the claim against the Nominal Defendant is barred.

There can be circumstances in which a late claim is accompanied by an explanation or reasonable excuse, but you should not assume that a late claim will be accepted.

For that reason, it is preferable to obtain advice well before any deadline approaches.

What Compensation Can Be Claimed?

The compensation available depends upon the individual circumstances, including the nature and severity of the injuries and their consequences.

Depending on the claim, compensation may include amounts relating to:

Medical treatment and rehabilitation

This may include reasonable and appropriate treatment and rehabilitation associated with the accident.

Loss of income

Compensation may be available for income lost because an injury prevents or limits a person's ability to work, including in appropriate cases future loss of earning capacity.

Care and assistance

In some circumstances, the effect of an injury on a person's need for care, assistance or services may form part of the assessment.

Pain and suffering

Depending upon the nature and severity of the injury, compensation may include general damages for the impact of the injury.

Every claim is different. The amount of compensation cannot be determined simply from the type of accident or diagnosis.

What Happens After a CTP Claim Is Lodged?

Once a claim has been lodged, the insurer will investigate the circumstances of the accident and the injuries claimed.

You may be asked to provide documents, medical information, photographs or other records. You may also be required to attend a medical examination or assessment.

Treatment and rehabilitation may continue while the claim progresses.

It is generally important not to finalise a claim before the longer-term effects of the injuries can be properly assessed. Once a claim is settled, the settlement ordinarily brings the compensation claim to an end.

Do I Need a Lawyer to Make a CTP Claim?

You are not required to have a lawyer to make a Queensland CTP claim and may deal directly with the insurer.

However, MAIC itself notes that legal advice may be appropriate where a claim is complex or disputed.

Legal advice can also assist in identifying the appropriate insurer, complying with time limits, gathering evidence, assessing the consequences of an injury and considering whether a proposed settlement adequately reflects the claim.

This can be particularly important where injuries are significant, recovery is uncertain or the accident has affected a person's capacity to work.

Injured in a Motor Vehicle Accident?

The period following an accident can be difficult, particularly where an injury affects your ability to work or carry out your usual activities.

Obtaining advice early can help you understand the CTP process, applicable time limits and the evidence that may be required to support your claim.

Speak With a Gold Coast Personal Injury Lawyer

KMB Legal assists clients with motor vehicle accident and personal

injury claims across the Gold Coast and Queensland.

We provide straightforward legal advice and direct access to an

experienced solicitor throughout your matter.

Free 30-minute initial telephone consultation.

BOOK A TELEPHONE CONSULTATION

Property Settlements After Separation: What You Need to Know

Thu, 17 Sep 2026 02:59:17 GMT

When a marriage or de facto relationship ends, separating finances can be one of the most important—and sometimes most complicated—parts of the process.

A family law property settlement can deal with much more than the family home. Depending on the circumstances, it may involve savings, investments, superannuation, businesses, companies, trusts, vehicles, debts and other financial interests.

There is also no automatic rule that property is divided 50/50.

Australian family law requires consideration of the particular financial circumstances of the parties before determining whether property interests should be altered and, if so, what outcome is just and equitable.

What is a property settlement?

A property settlement is the process of resolving the financial relationship between parties following the breakdown of a marriage or de facto relationship.

It can involve determining what happens to property, liabilities and other financial interests.

Many separating couples reach an agreement without asking the Court to decide their property settlement. Where agreement cannot be reached, the Federal Circuit and Family Court of Australia has broad powers to make property orders.

Importantly, simply separating does not automatically change legal ownership of assets or finalise financial claims between former partners.

What property is considered?

The first stage involves identifying the parties' property and liabilities.

Depending on the circumstances, this may include:

the family home and other real estate;
bank accounts and savings;
shares and investments;
motor vehicles;
superannuation;
businesses and company interests;
interests involving trusts;
valuable personal property;
mortgages;
personal loans;
credit cards; and
other debts and financial interests.

Property may be relevant even if it is held in only one person's name.

Similarly, an asset is not necessarily excluded simply because one person acquired it before the relationship or after separation. The timing and circumstances of acquisition may instead be relevant when considering the parties' contributions and the overall outcome.

Is everything divided 50/50?

No.

There is no automatic 50/50 rule for family law property settlements.

The Court must consider the individual circumstances of the relationship and can only make an order altering property interests if it is satisfied that doing so is just and equitable .

Two couples with property pools of the same value may therefore have different outcomes because their contributions, responsibilities and future circumstances are different.

How does the Court determine a property settlement?

Following reforms that commenced on 10 June 2025 , the Family Law Act 1975 expressly sets out the framework for determining property settlements.

Broadly, the process involves:

identifying the parties' property and liabilities;
considering the contributions made by each party;
considering each party's current and future circumstances; and
determining whether the proposed outcome is just and equitable.

These principles are also relevant when parties negotiate a property settlement outside Court.

What contributions are considered?

Property settlements are not determined solely by asking who earned the most money.

The Court can consider different forms of contribution made during the relationship.

These may include financial contributions such as income, savings or property brought into the relationship, as well as contributions to acquiring, conserving or improving property.

The law also recognises contributions to the welfare of the family, including contributions as a homemaker and parent.

The significance of particular contributions depends upon the circumstances of the relationship as a whole.

What about property owned before the relationship?

Property owned before a marriage or de facto relationship can be relevant.

However, it is not necessarily quarantined from consideration simply because one person owned it first.

Its significance may depend upon factors such as:

its value when the relationship commenced;
the length of the relationship;
what happened to the property during the relationship;
contributions made by each party;
whether it was sold or combined with other assets; and
the parties' overall financial circumstances.

The treatment of substantial initial contributions can therefore be more nuanced than simply removing their original value from the property pool.

What happens to superannuation?

Superannuation can be dealt with as part of a family law property settlement.

The Family Law Act permits superannuation interests to be the subject of splitting orders in accordance with the statutory superannuation regime.

A superannuation split does not generally mean the recipient receives cash immediately. The split usually creates or transfers a superannuation entitlement that remains subject to superannuation rules.

Superannuation can be particularly important where there is a significant difference between the parties' retirement savings.

What happens if one party owns a business?

Business interests can make a property settlement considerably more complex.

It may be necessary to identify the relevant company, trust, partnership or other structure and determine the nature and value of the party's interest.

A business may also require independent valuation.

Company accounts, tax records, trust documents, shareholder and director loan accounts and other financial information may need to be considered.

Do both parties have to disclose their finances?

Yes.

Financial disclosure is fundamental to resolving a property settlement.

The duty requires parties to provide relevant financial information and documents and is ongoing while the property dispute is being resolved. From 10 June 2025, the financial disclosure duty was expressly incorporated into the Family Law Act.

This can be especially important where one party has greater knowledge or control of the family's finances or business structures.

Does family violence affect a property settlement?

It can.

Since 10 June 2025 , the Family Law Act expressly requires the economic effect of family violence to be considered where relevant when determining a property settlement.

For example, family violence may have affected a person's ability to make contributions or may continue to affect their financial circumstances after separation.

The reforms also make clear that economic or financial abuse can constitute family violence.

This does not mean that every allegation of family violence automatically produces a particular percentage adjustment. Its relevance depends upon the circumstances and economic effect in the particular case.

What about debts?

Liabilities also need to be identified.

These can include mortgages, credit cards, personal loans, tax debts and business-related liabilities.

The existence of a debt does not necessarily determine how it will ultimately be treated. Its purpose, when it was incurred and the surrounding circumstances may be relevant.

Complex property settlements may also involve director loans, shareholder loans or liabilities between related entities.

Can we agree on our own property settlement?

Yes.

Many couples resolve their property matters through negotiation or dispute resolution rather than having a judge determine the outcome.

However, reaching an informal agreement and legally finalising the financial relationship are different things.

Depending on the circumstances, an agreed settlement may be formalised through consent orders or a binding financial agreement .

The appropriate option depends upon the circumstances, and legal advice should be obtained before finalising the arrangement.

Do I need to wait until I am divorced?

No.

For married couples, a property settlement can be dealt with before a divorce is finalised . Divorce and property settlement are separate legal processes.

However, divorce can affect the time available to commence property proceedings, so it is important not to overlook the applicable limitation period.

Are there time limits?

Yes.

For married couples, an application for property orders generally needs to be commenced within 12 months after the divorce order takes effect .

For de facto relationships, the general time limit is two years after the relationship breaks down .

Applications can sometimes proceed outside those periods, but additional legal requirements apply and permission should not be assumed.

Obtaining advice well before a limitation period expires is therefore important.

Should property be divided immediately after separation?

There is no single answer that applies to every couple.

Some matters can be resolved relatively quickly. Others require disclosure, property valuations, business valuations or investigation of more complicated financial structures before sensible negotiations can occur.

What is important is understanding the financial position before agreeing to a final settlement.

Once a settlement is legally finalised, changing it later can be difficult.

Getting advice early

Early legal advice does not necessarily mean commencing Court proceedings.

It can help you understand:

what property and liabilities need to be identified;
what financial disclosure should be obtained;
how different contributions may be relevant;
whether valuations are required;
the implications of businesses or trusts;
your options for negotiating a settlement; and
how an agreement can ultimately be formalised.

Understanding these issues before making significant financial decisions can help avoid problems later.

Speak with a Gold Coast Family Lawyer

KMB Legal assists clients with property settlements following marriage and

de facto relationship breakdowns, from straightforward property matters

to settlements involving businesses, companies, trusts and more complex financial structures.

Our experience across Family Law and Commercial & Business Law provides an additional commercial perspective where business interests form part of the property settlement.

Free 30-minute initial telephone consultation.

BOOK A TELEPHONE CONSULTATION

Complex Property Settlements: Businesses, Companies and Trusts in Family Law

Thu, 17 Sep 2026 01:02:01 GMT

For many separating couples, the property pool consists primarily of the family home, savings, superannuation and personal liabilities.

For business owners and families with more complex financial structures, the position can be very different.

A property settlement may involve private companies, family trusts, business interests, investment entities, shareholder or director loans, retained earnings and assets held across several structures.

The fact that an asset is held by a company or trust rather than personally does not necessarily mean it can simply be disregarded. Equally, not every asset owned by a company or trust automatically becomes property available for division between the parties.

Understanding the ownership, control, value and financial significance of these structures is therefore an important part of resolving a complex property settlement.

How does the Court approach a property settlement?

The property settlement framework was clarified by amendments to the Family Law Act 1975 that commenced on 10 June 2025 .

Broadly, the Court identifies the parties' property and liabilities, considers their contributions, considers their current and future circumstances, and determines whether the proposed alteration of property interests is just and equitable.

Where companies, businesses or trusts are involved, simply identifying the property and financial resources of the parties can require considerable investigation.

What happens to a business in a family law property settlement?

A business interest can be highly significant to a property settlement.

Depending on how the business is structured, a party may hold:

shares in a company;
an interest in a partnership;
units in a unit trust;
interests or powers associated with a discretionary trust;
business assets as a sole trader; or
interests through several interconnected entities.

The first step is usually to understand what the party actually owns or controls and how the business structure operates .

The business may then need to be valued.

Importantly, the value of a business is not necessarily the amount shown for its assets in the accounts. Its value may also reflect matters such as profitability, maintainable earnings, goodwill, liabilities and the commercial circumstances of the business.

How are companies dealt with?

A company is a separate legal entity, so assets owned by a company are not automatically the personal assets of its shareholders.

However, a person's shares in the company may themselves have substantial value.

The financial relationship between the person and the company may also need to be examined. Relevant issues can include:

Shareholdings · Director and shareholder loans · Dividends · Retained profits · Related-party transactions · Company liabilities · Business assets

The Family Law Act gives the Court broad powers in property proceedings and, subject to statutory safeguards, can also permit certain orders affecting third parties, including orders relating to the transfer of company shares.

The precise treatment of a company will depend on the particular structure and circumstances.

What about family trusts?

Trusts can require even closer examination.

It is not enough simply to say that an asset is “owned by the family trust”.

The legal and practical operation of the trust may need to be considered, including:

who is the trustee;
who appoints or can remove the trustee;
who are the beneficiaries;
who makes decisions about distributions;
the terms of the trust deed;
how the trust has historically operated; and
the extent of a party's control over the trust and its assets.

Depending on those circumstances, an interest associated with a trust may be relevant as property or as a financial resource, among other possibilities.

The outcome is highly fact-specific, which is why the trust deed and the way the trust actually operates can be important.

“It's in the trust, so it isn't part of the property settlement” — is that correct?

Not necessarily.

This is one of the misconceptions that can arise in complex property matters.

Putting assets into a company or trust does not, by itself, determine how those interests will be treated in family law.

Conversely, the existence of a family connection to a trust does not mean that every trust asset automatically belongs to the parties.

The Court considers the actual legal and financial circumstances. That can include the nature of a party's interest, their degree of control and the practical operation of the structure.

This is an area where obtaining advice about the particular entity structure is especially important.

Why does control matter?

Legal ownership tells only part of the story in some structures.

For example, a person may not personally hold title to the assets of a discretionary trust but may occupy positions that give them significant influence over how the trust operates.

The Court's own case-management material recognises that family-law property cases may involve family trusts, companies or partnerships that are owned or in the effective control of a party and require expert valuation or investigation.

The particular rights and powers created by the relevant documents must therefore be examined rather than assuming control merely from a person's relationship to an entity.

What financial documents may need to be disclosed?

Complex structures usually make financial disclosure particularly important.

The Court states that full and frank disclosure extends to a party's total direct and indirect financial circumstances, including interests and financial resources held through corporations, trusts, companies and other structures.

Depending on the matter, relevant documents may include company financial statements, tax returns, BAS records, trust deeds and amendments, trust financial statements, distribution records, share registers, loan accounts, bank statements and business sale or acquisition documents.

Documents concerning certain transfers or disposals of property can also be relevant.

What are director and shareholder loan accounts?

Loan accounts are frequently encountered in privately owned businesses.

For example, money may have been advanced:

by a director to a company;
by a company to a director or shareholder;
between related companies;
between a trust and a beneficiary; or
between family members and associated entities.

These balances should not simply be ignored.

It may be necessary to establish whether a genuine liability or receivable exists, whether it is recoverable and how it should be treated when determining the financial position.

The treatment of inter-entity and party loans can be significant in complex cases; recent Federal Circuit and Family Court judgments illustrate disputes involving company and trust valuations, inter-company loans, party/entity loan balances and associated tax liabilities.

How is a business valued?

Sometimes the parties can agree on the value of a business. In more complex matters, an independent expert valuation may be required.

A valuation may involve examining matters such as historical financial performance, maintainable earnings, business assets and liabilities, goodwill, industry conditions and other factors relevant to the particular business.

The appropriate valuation methodology will depend upon the business.

The Court's procedures specifically contemplate expert investigation and valuation where companies, trusts or other entities are involved and their values are contested.

Is the money in a company bank account simply divided between the parties?

Usually the analysis is not that simple.

A company's cash belongs to the company. It may be required for working capital, taxation, employee entitlements, creditors or other business obligations.

At the same time, the company's financial position may affect the value of a party's shares or other interests.

Care needs to be taken to avoid double counting . For example, an amount reflected in the value of a business should not necessarily also be treated separately as another asset available for division.

This is one reason expert accounting evidence can become important in higher-value matters.

What about tax consequences?

Tax can materially affect the practical outcome of a proposed settlement.

A transfer or restructuring involving a business, company, trust or investment may have taxation implications that differ considerably from simply transferring cash.

Potential taxation consequences should therefore be identified before settlement terms are finalised.

Family lawyers will often work with the client's accountant or specialist tax adviser where necessary. Legal advice about a family law settlement should not be treated as a substitute for specialist taxation advice.

Can assets be transferred before or after separation?

Transactions involving assets or business interests around the time of separation may require careful examination.

The disclosure requirements specifically extend to certain disposals of property by sale, transfer, assignment or gift made in the year immediately before separation or since final separation where they may affect, defeat or deplete a claim.

A transaction is not necessarily improper simply because it occurred near separation. Businesses continue to operate and legitimate transactions continue to occur.

The purpose, value and circumstances of a transaction may nevertheless be relevant.

Why can complex property matters require other professionals?

A family lawyer does not necessarily work alone in a complex property settlement.

Depending on the circumstances, the matter may involve:

Accountants · Forensic accountants · Business valuers · Property valuers · Tax advisers · Financial advisers

The lawyer's role includes identifying the legal issues, determining what disclosure is required and coordinating the evidence needed to understand the property pool and negotiate or litigate the matter.

The advantage of understanding both family law and business structures

Where a property settlement involves businesses, companies and trusts, understanding the commercial structure behind the assets can be just as important as understanding the family law framework.

Questions about ownership, company structures, trust deeds, shareholder arrangements, loan accounts and business valuations can materially affect the outcome.

At KMB Legal, our work across Family Law and Commercial & Business Law gives us a commercial perspective when assisting clients with property settlements involving business interests and more complex financial structures.

Getting advice early

Complex structures can take time to investigate.

Obtaining advice early can help identify the documents required, determine whether specialist valuation or accounting evidence may be necessary, and reduce the risk of negotiating a settlement before the financial position is properly understood.

Speak with a Gold Coast Family Lawyer

KMB Legal assists clients with family law property settlements, including matters involving

businesses, companies, trusts and complex financial interests .

We combine family law experience with a commercial understanding of business structures and transactions.

Free 30-minute initial telephone consultation.

BOOK A TELEPHONE CONSULTATION

Equal Shared Parental Responsibility Is No Longer Presumed: What Parents Need to Know

Wed, 16 Sep 2026 23:27:46 GMT

Equal Shared Parental Responsibility Is No Longer Presumed:

What Parents Need to Know

By Katie Chan

Changes to Australian family law have removed the presumption of equal shared parental responsibility.

Here’s what that means for parents making parenting arrangements after separation.

Australian family law changed significantly on 6 May 2024 , including changes to the way courts approach parental responsibility and parenting arrangements.

One of the most important changes was the removal of the presumption of equal shared parental responsibility .

The change has caused some confusion. In particular, it does not mean that parents can no longer share responsibility for important decisions about their children. Nor does it mean that one parent will automatically have sole decision-making responsibility.

Instead, the legislation is intended to keep the focus on the individual child and the parenting arrangements that are in that child's best interests.

What was the presumption of equal shared parental responsibility?

Before 6 May 2024, section 61DA of the Family Law Act 1975 required a court, when making a parenting order, to apply a presumption that it was in the child's best interests for the parents to have equal shared parental responsibility .

Parental responsibility concerns the duties, powers, responsibilities and authority that parents have in relation to their children.

Importantly, even under the former law, equal shared parental responsibility did not mean that a child was automatically required to spend equal time with each parent . The former legislation expressly distinguished parental responsibility from the amount of time a child spent with each parent.

This distinction was not always well understood.

What changed on 6 May 2024?

The Family Law Amendment Act 2023 removed the presumption of equal shared parental responsibility.

It also removed the former provisions that, in certain circumstances, required the Court to consider whether a child spending equal time , or substantial and significant time , with each parent would be in the child's best interests and reasonably practicable.

The Court now determines parenting arrangements by applying the current parenting framework in the Family Law Act, with the best interests of the child as the paramount consideration .

The amendments were intended, among other things, to simplify the parenting framework and address misunderstanding that parents had an entitlement to equal time with their children.

Does this mean parents no longer share parental responsibility?

No.

The removal of the presumption does not prevent parents from sharing parental responsibility or making important decisions together.

Under section 61C, each parent of a child under 18 generally has parental responsibility for the child, subject to any applicable court order.

The important change is that this does not create a presumption that the Court must apply when deciding what parenting order to make .

A parenting order can provide for joint or sole decision-making about all or particular major long-term issues concerning a child.

What are “major long-term issues”?

Major long-term issues are decisions of a long-term nature concerning a child's care, welfare and development.

They can include matters relating to:

education;
religious and cultural upbringing;
health;
the child's name; and
changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

These are different from ordinary day-to-day decisions made while a child is spending time with a parent.

The current Act specifically provides that a person spending time with a child will generally not need to consult another person about decisions that are not major long-term issues, such as ordinary decisions about what the child eats or wears.

Can the Court still order joint decision-making?

Yes.

The Court can make a parenting order providing for joint decision-making about all or specified major long-term issues.

Where such an order is made, the people given joint decision-making responsibility are generally required to:

consult each other about the relevant decision; and
make a genuine effort to reach a joint decision.

Alternatively, depending on the circumstances and the child's best interests, the Court can order that one person have sole decision-making responsibility for all or particular major long-term issues.

There is no longer a statutory presumption requiring the Court to start from one particular arrangement.

Are parents expected to consult each other if there is no Court order?

The current Act encourages parents, where it is safe to do so and subject to any court orders , to consult each other about major long-term issues affecting their child.

When doing so, parents are encouraged to have regard to the best interests of the child as the paramount consideration .

The words “if it is safe to do so” are important. Family violence, abuse and other safety concerns may significantly affect what arrangements are appropriate.

Is there a presumption of 50/50 time?

No.

There is no presumption that children should spend equal time with each parent .

In fact, there was not an automatic presumption of 50/50 time under the former legislation either.

The former law created a presumption concerning parental responsibility , not equal time. However, where the former presumption applied, additional provisions required the Court to consider equal time and then substantial and significant time in particular circumstances.

Those associated provisions were repealed as part of the 2024 reforms.

The amount of time a child spends with each parent is therefore determined according to the circumstances of the particular child and what arrangements are in their best interests.

How does the Court decide what is in a child's best interests?

The 2024 reforms also simplified the factors the Court considers when determining a child's best interests.

Under the current section 60CC, the Court considers matters including:

what arrangements would promote the safety of the child and each person who has care of the child;
any views expressed by the child;
the child's developmental, psychological, emotional and cultural needs;
the capacity of each proposed carer to meet those needs;
the benefit to the child of having relationships with their parents and other significant people, where it is safe to do so; and
anything else relevant to the child's particular circumstances.

There are additional considerations concerning an Aboriginal or Torres Strait Islander child's right to enjoy their culture. The child's best interests remain the paramount consideration .

What role does family violence and safety play?

Safety is an important part of the current parenting framework.

When considering arrangements that would promote the safety of a child and their carers, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with relevant family violence orders.

Accordingly, joint decision-making will not necessarily be appropriate simply because both people are the child's parents.

The circumstances of each family must be considered individually.

What happened to existing parenting orders?

The reforms did not automatically cancel parenting orders that were already in place.

The transitional provisions applied the new parenting framework to proceedings commenced on or after commencement and generally to proceedings commenced earlier but not finally determined, subject to an exception where a final hearing had already commenced by 6 May 2024.

Parents with existing final parenting orders should continue to comply with those orders unless they are varied, discharged or otherwise cease to operate.

If circumstances have changed and you are considering seeking different parenting arrangements, legal advice should be obtained about the existing orders and the requirements for seeking to change them.

What do the changes mean for separated parents?

The practical effect of the reforms is that parents should avoid approaching parenting arrangements on the basis that either parent has an automatic entitlement to 50/50 time, equal time or a particular allocation of decision-making responsibility.

Instead, the focus should be on the individual child, including their needs, safety, circumstances and the arrangements that will best promote their welfare and development.

Parents can still reach agreements that involve substantial or equal time and joint decision-making where those arrangements are appropriate.

The important point is that there is no statutory presumption requiring that outcome .

Do parents still need to try Family Dispute Resolution?

Generally, parents who want to apply to the Court for parenting orders must first make a genuine effort to resolve their dispute through Family Dispute Resolution , unless an exemption applies.

Exceptions can include circumstances involving family violence, child abuse, risk or urgency.

Parents who are able to reach agreement may document their arrangements in a parenting plan or, where appropriate, apply for consent orders.

Getting advice about parenting arrangements

The removal of the presumption of equal shared parental responsibility has changed an important part of the legal framework, but it has not removed the ability of parents to share responsibility or for children to spend significant time with both parents.

What matters is whether the proposed arrangements are appropriate for the particular child and are in their best interests.

Obtaining legal advice early can help separated parents understand how the current law applies to their circumstances and avoid relying on outdated assumptions about parental responsibility or equal time.

Speak with a Gold Coast Family Lawyer

KMB Legal assists clients with parenting arrangements, parenting orders and

other family law matters across the Gold Coast and Queensland.

We provide considered legal advice and direct access to an experienced

solicitor throughout your matter.

Free 30-minute initial telephone consultation.

BOOK A TELEPHONE CONSULTATION

Family Report in Australia: What to Expect and How to Prepare

katie@kmblegal.com.au (Katie Chan) — Thu, 01 Jan 2026 08:37:14 GMT

FAMILY LAW

Family Reports in Australian Family Law:
What to Expect and How to Prepare

If a Family Report has been ordered in your parenting matter, understanding the process can help you approach the

assessment feeling informed and prepared.

By Katie Chan | Updated September 2026

When parents are unable to agree about parenting arrangements, the Court may require independent expert information to better understand the circumstances of the family and the needs of the children.

One way the Court can obtain this information is through a Family Report .

A Family Report can become an important piece of evidence in parenting proceedings. It may address the children's circumstances, relationships with significant people, any identified risks and possible future parenting arrangements.

Understanding what a Family Report is—and what it is not—can help parents prepare appropriately for the assessment.

What is a Family Report?

A Family Report is an independent family assessment prepared by a family consultant to assist the Federal Circuit and Family Court of Australia in parenting proceedings.

Under section 62G of the Family Law Act 1975 (Cth) , the Court may direct a family consultant to provide a report about matters relevant to the care, welfare and development of a child under 18.

Family Reports are generally ordered where a parenting matter is progressing towards a final hearing and the Court would benefit from an independent assessment of the family circumstances.

The report does not determine the case. It provides evidence and recommendations that may assist the Court when considering what parenting arrangements are in the child's best interests.

Who prepares a Family Report?

A Court-ordered Family Report is prepared by a family consultant .

This may be:

a Court Child Expert , who is employed by the Court; or
a Panel Family Consultant , who is a suitably qualified private practitioner appointed as a family consultant and engaged by the Court.

The Court Children’s Service oversees the work of both. Family consultants have relevant professional qualifications and expertise in working with children and families following separation.

You may see older information referring to a “Regulation 7 Family Consultant” . That terminology is no longer current. These practitioners are now referred to as Panel Family Consultants following changes to the Family Law Regulations and terminology adopted by the Court in 2025.

What happens during a Family Report assessment?

The precise assessment process will depend on the circumstances of the family.

The family consultant may:

interview each parent or other significant adults;
meet with the child or children;
observe interactions between a child and a parent;
consider relevant Court documents and other information;
explore the child's relationships and family circumstances; and
consider issues concerning the child's development, wellbeing and safety.

The family consultant considers the children's experiences and development, the circumstances of the family and the issues relevant to the particular proceedings.

The process is an assessment , rather than counselling or mediation. The family consultant's role is to provide independent information to the Court, not to act for either parent.

Will my child be interviewed?

Depending on factors such as the child's age, maturity and circumstances, the family consultant may speak with the child as part of the assessment.

Section 62G generally requires a family consultant preparing a report to ascertain the child's views about the relevant matters and include those views in the report. There are exceptions where doing so would be inappropriate because of the child's age, maturity or another special circumstance. A child cannot be required to express a view.

Importantly, a child's views are not the same as the child being asked to choose between their parents .

The weight ultimately given to a child's views will depend on the circumstances of the individual case.

What does the Family Consultant consider?

A Family Report is not simply an assessment of which parent presents better during an interview.

The family consultant may consider matters including:

the child's developmental, psychological and emotional needs;
the child's relationships with each parent and other significant people;
the capacity of each proposed carer to meet the child's needs;
the child's views, where appropriate;
the history of the parenting arrangements;
allegations or concerns relating to family violence, abuse, neglect or other risks;
the practical circumstances of the family; and
the likely effect of proposed parenting arrangements on the child.

The particular issues considered will depend on the circumstances of the case and the matters the Court has asked the family consultant to address.

Is what I say to the Family Consultant confidential?

No.

This is an important distinction between a Family Report assessment and counselling.

Information provided to a family consultant when they are undertaking their Court-appointed role is not confidential . Information gathered may be admissible in Court, may be included in the Family Report and may be referred to if the family consultant later gives evidence.

Parents should therefore approach the assessment openly and honestly, while remembering that the family consultant is performing an independent forensic role for the Court.

How should I prepare for a Family Report?

There is no script for a successful Family Report interview, and attempting to rehearse answers or present a carefully manufactured version of events is unlikely to be helpful.

A better approach is to be prepared to discuss:

your child's current routine and circumstances;
your child's individual needs;
the parenting arrangements to date;
what arrangements you propose for the future;
any concerns you have about the child;
how you propose to support the child's relationship with other important people, where it is safe to do so; and
any safety concerns relevant to the proposed parenting arrangements.

Try to remain focused on the child rather than the conflict between the adults .

Where concerns about the other parent are relevant, explain them clearly and factually. Avoid using the assessment simply as an opportunity to criticise your former partner.

You should also read any instructions provided by the Court Children’s Service carefully and comply with the arrangements for the assessment. If the Court has ordered attendance, parties are required to attend and follow the relevant directions.

What if there are family violence or safety concerns?

Tell your solicitor about any family violence, child abuse, neglect or other safety concerns well before the assessment.

Family consultants have specialist knowledge relevant to separated families and family violence. They may also have obligations to notify child welfare authorities where they reasonably suspect that a child has been abused, is at risk of abuse or is experiencing or at risk of certain forms of harm.

If you have concerns about attending the assessment safely, those concerns should be raised before the appointment so that appropriate arrangements can be considered.

How much does a Family Report cost?

A Family Report ordered under section 62G and prepared by a Court Child Expert or Panel Family Consultant through the Court Children’s Service is funded by the Court. There is no cost to the parties for the report.

This is different from a private family report or other expert report .

Parties may, in appropriate circumstances, engage a private professional to conduct an assessment and prepare expert evidence. Private reports are generally paid for by the parties and are not organised by the Court Children’s Service.

What happens after the Family Report is released?

The Family Report will generally set out the family consultant's assessment and may make recommendations concerning future parenting arrangements.

Those recommendations can be influential, but they do not become Court orders simply because they appear in the report.

The report forms part of the evidence available to the Court and should be considered alongside the other evidence in the proceedings.

Receiving a report can also sometimes provide an opportunity for the parties to reconsider their positions and explore whether agreement can be reached without a final hearing.

Does the Court have to follow the recommendations?

No.

The Court expressly states that a Family Report is only one source of evidence and that the Court is not bound by the family consultant's recommendations.

Ultimately, it is the judicial officer who determines what parenting orders should be made, applying the Family Law Act to all of the evidence before the Court.

What if I disagree with the Family Report?

A recommendation you disagree with does not necessarily mean that the assessment was unfair or that the report should simply be disregarded.

Your solicitor can consider the report with you, identify any factual issues or matters requiring clarification and advise you about how it affects your case.

Where the contents or conclusions of the report need to be challenged, the appropriate process may include cross-examination of the family consultant at Court .

If the family consultant is required for cross-examination, they must generally be given at least 14 days' written notice .

Parties should not ordinarily attempt to contact the family consultant after the report has been completed to debate the findings or provide additional information.

Family Reports and your parenting matter

A Family Report can be an important stage in parenting proceedings, particularly where significant issues remain in dispute and a matter is moving towards a final hearing.

Preparing appropriately means understanding the purpose of the assessment, complying with the Court's directions, being honest and keeping the focus on the child's needs and circumstances.

If a Family Report has been ordered in your matter, obtaining legal advice before the assessment can help you understand the process, the issues likely to be relevant and how the report may fit within the broader parenting proceedings.

Speak with a Gold Coast Family Lawyer

KMB Legal assists clients with parenting matters and other family law issues across the Gold Coast and Queensland.

We provide considered legal advice and direct access to an experienced solicitor throughout your matter.

Free 30-minute initial telephone consultation.

BOOK A TELEPHONE CONSULTATION

Commercial in Confidence: All you need to know

katie@kmblegal.com.au (Katie Chan) — Wed, 08 Jun 2022 13:14:47 GMT

Commercial in Confidence: All you need to know

It is said that knowledge is power, and nowhere is this truer than in the business world. In today's competitive marketplace, companies are constantly striving to gain an edge in a very competitive economy. One way they can do this is by keeping their plans and strategies secret.

This is where commercial in confidence comes in. By legally protecting information such as business plans, product designs, sensitive financial information, and marketing strategies, businesses can make sure that their business affairs stay private.

Commercial in confidence is any information that could give a business an advantage over its competitors. When businesses share commercial in confidence with others, they typically do so under strict non-disclosure agreements that forbid the recipient from disclosing the information to anyone else.

Violating such an agreement can lead to serious consequences, including legal action and financial damages. Consequently, businesses must be very careful about whom they share commercial in confidence and under what circumstances.

Types of Business confidential information

There are three main types of business confidential information in Australia.

Financial information

This includes information relating to a company's financial position, performance or prospects. It can include balance sheets, profit and loss statements, and cash flow projections.

A company's financial information is a critical part of understanding its overall health and performance. Financial statements can provide insights into a company's overall financial position, as well as its performance over time.

They can also be used to compare a company's financial situation to that of its peers. Understanding a company's financial information can help investors make more informed decisions about whether or not to invest in the company.

Product information

This includes information about a company's products or services, such as pricing, design, production methods and marketing plans.

A company's product information is a vital part of its marketing strategy. This information will eventually help potential customers to understand what the product is and how it can benefit them.

Product information can also help to differentiate a company's products from its competitors.

Personnel information

This includes information about a company's employees, such as skills, training, experience and salaries.

Personnel information is a crucial component of any business. This type of information can help a company to assess the skills and training of its employees, as well as their experience and salaries.

This data can be used to make decisions about hiring, promotions and raises. In addition, personnel information can be used to identify potential problem areas within a company.

For example, if a high proportion of employees are leaving after a short period of time, this may indicate that there are issues with the company's culture or training program. This information may be misused in the wrong hands, and hence is important to keep it under wraps.

As a business, you will undoubtedly have information that you need to keep confidential. This could be anything from your company's financial records to sensitive customer data. safeguarding this information is vital to the success and security of your business.

How do you safeguard confidential information?

There are a number of ways you can safeguard confidential information, including:

Encrypting files and storing them in a secure location

When it comes to security, there are often multiple layers that can be employed in order to better protect sensitive information. For example, encrypting files and storing them in a secure location is one way to ensure that only authorised individuals have access to the data. While this may seem like a fairly straightforward process, there are actually a number of factors that need to be taken into account in order to ensure the security of the data.

The encryption method that is used needs to be strong enough to resist brute force attacks.
The key that is used to encrypt the data needs to be properly managed and stored in a secure location.
The data itself needs to be stored in a location that is not easily accessible by unauthorised individuals.

It is possible to create a very effective security system for protecting sensitive data with encryption. In addition, you can take measures to control who has access to confidential information, such as restricting access to certain individuals on a need-to-know basis.

Password protecting access to important files and systems

In today's world, cybercrime is a real and growing threat. Hackers can gain access to important files and systems, causing serious damage. As a result, it is more important than ever to password protect access to important files and systems.

By using strong passwords that are difficult to guess, you can help to prevent hackers from gaining access to your data. In addition, you should also keep your passwords confidential and change them on a regular basis. By taking these steps, you can help to keep your data safe from cybercrime. This also helps you keep track of what you are sharing in commercial in confidence, as you may have to share passwords temporarily.

Draw strong contracts

If you absolutely have to share information, make sure you draw iron-clad contracts first with proper confidentiality clauses. When it comes to safeguarding commercially sensitive information, there are a few key things to keep in mind.

First and foremost, always use a nondisclosure agreement (NDA) when sharing confidential information with another party. This will help ensure that intellectual property remains protected and does not end up in the wrong hands.

Another important thing to remember is to limit the amount of information that you share with others. Only share what is absolutely necessary and make sure that all confidential information is stored securely. Always be careful when discussing confidential information in public or online, as it can be easily overheard or seen by others.

Restricting access to certain areas

In many organisations, there is a need to restrict access to certain areas or information to only those who need it. This can be for security reasons, to protect commercially confidential information and intellectual property or to prevent unauthorised personnel from causing harm.

There are several ways to achieve this, such as using physical barriers, locking doors, or using security cameras. Another option is to use software-based controls, such as password-protected files or user accounts with limited permissions.

Whatever the approach, it is important to have a clear and well-documented policy in place so that everyone understands what is allowed and what is not.

Ensuring that all staff are aware of their responsibility to keep the information confidential

In today's world, information is one of the most valuable commodities. Whether it is customer data, financial records, or trade secrets, businesses go to great lengths to protect their information.

One of the most important ways to protect confidential business information is to ensure that all staff are aware of their responsibility to keep information confidential. By making sure that all employees understand the importance of confidentiality, businesses can help to create a culture of discretion and security.

In addition, businesses should have clear policies and procedures in place to ensure that information is only shared on a need-to-know basis.

Implementing these measures will help to protect your confidential information from being accessed by unauthorised individuals.

If you have any questions about safeguarding confidential information, or if you need assistance in implementing any of the measures listed above, please contact our team of experts. We are always here to help with our legal services.

Establishing a confidential agreement

A confidentiality agreement is a legally binding contract between two or more parties, in which the parties agree to exchange confidential information and keep it secret. The confidential information may be any type of information, including trade secrets, business plans, financial information, or other sensitive information.

In Australia, a confidentiality agreement (also called a non-disclosure agreement or NDA) is a legally binding contract between two parties in which one party agrees to not disclose information that may be considered confidential.

The purpose of a confidentiality agreement is to protect sensitive information from being made public. This type of agreement is often used when businesses are seeking to protect their trade secrets or other proprietary information. Confidentiality agreements can be either written or oral, but it is generally advisable to have a written agreement in place so that there is no confusion about the terms of the agreement.

When drafting a confidentiality agreement, it is important to clearly identify what information will be considered confidential and to ensure that all parties understand their obligations under the agreement.

Components of a Confidentiality Agreement

A well-written confidentiality agreement can help to protect your business's confidential information and maintain its competitive edge.

In Australia, there are several key components that must be included in a confidentiality agreement in order for it to be legally binding.

The parties involved must be clearly identified.
The scope of the agreement must be defined, specifying what information is to be considered confidential and how it can be used.
There must be a clear expiration date for the agreement.

By including these essential elements, businesses can protect their confidential information from unauthorised disclosure.

Contract clauses

In Australia, contract clauses involving commercial in confidence are common. These clauses are designed to protect confidential information from being disclosed to third parties without the consent of the party who owns the information. A typical clause will state that:

the parties agree not to disclose any confidential information to any person or entity outside of the contract.
the specific type of information that is considered confidential, such as business plans or financial records.

In order to be effective, contract clauses involving commercial in confidence must be clear and concise. They should also be tailored to the specific needs of the parties involved.

When entering into a commercial contract, it is important to protect your confidential information. In Australia, this can be done by including a clause in the contract that requires the other party to keep the information confidential.

The clause should specify what information is to be kept confidential, and how long the confidentiality obligation will last. It is also important to make sure that you have the right to enforce the clause if the other party breaches it.

Otherwise, you may find yourself without any recourse if your confidential information is leaked. Including a well-drafted confidentiality clause in your commercial contracts will help to protect your business interests and give you peace of mind.

Obligation of Confidence

The obligation of confidence is a legal doctrine that prohibits the disclosure of confidential information without the consent of the person who provided the information.

The doctrine is typically used to protect trade secrets, but it can also apply to other types of information, such as sensitive business or personal information.

In the commercial context, the obligation of confidence can arise in a variety of circumstances, such as when a company enters into a nondisclosure agreement with another party. The obligation of confidence can also be implied by the nature of the relationship between two parties, such as when one party provides confidential information to another in order to obtain a business advantage.

Violating the obligation of confidence can give rise to a variety of legal claims, such as breach of contract or defamation.

This protection is typically used in scenarios where one party has shared confidential information with another party in the course of doing business.

The obligation of confidence requires the receiving party to keep the information secret and to only use it for the purpose for which it was intended. As such, it is important for businesses to take steps to ensure that their employees and contractors understand and respect the obligations of confidence.

Duty of Confidence

In the commercial world, the term "duty of confidence" refers to a legal obligation to keep certain information private. This information can include anything from customer lists and marketing plans to manufacturing processes and financial data, anything that could be used to harm your company or give your competitors an unfair advantage.

This duty can arise in a number of ways, but most commonly it is either expressly stated in a contract or implied by law. Under both contract law and common law, an individual who discloses confidential information without authorisation can be held liable for damages.

The duty of confidence is an important part of doing business, and it helps to ensure that sensitive information is not mishandled. By respecting the duty of confidence, businesses can protect their interests and maintain the trust of their customers.

Breach of Confidence

A breach of confidence occurs when someone discloses information that was supposed to be kept secret. This can be devastating to a company, as it can lead to the loss of customers, competitive advantage, and even legal action.

There are many ways to prevent a breach of confidence, such as having strict confidentiality agreements in place, ensuring that only authorised personnel have access to sensitive information, and encrypting all confidential data.

For example, if an employee discloses confidential information about their company to a competitor, this may give the competitor an unfair advantage. Sometimes, former employees violate confidentiality agreements and disclose sensitive information to outsiders.

Conclusion

Commercial in confidence is a legal term that refers to any information a business wants to keep secret. This could be anything from future product designs and marketing plans to sensitive financial information. By keeping this information confidential, businesses can make sure they stay ahead of the competition.

So, what can your business do to protect its confidential information? The best way is to get in touch with a legal team who understands the ins and outs of commercial in confidence.

At KMB Legal, we have years of experience helping businesses just like yours keep their secrets safe. Contact us today for more information on how we can help you.

FAQs

Who has Duty of Confidence?

The duty of confidence can arise in a variety of circumstances, and it is important to be aware of when it applies. The receiver of the confidential information is usually held responsible.

The duty of confidence generally arises when an individual has been entrusted with confidential information by their employer. This could include information about the employer's business plans, strategies, or customers.

The duty of commercial in confidence also applies to any information that an individual has promised to keep confidential, such as trade secrets or proprietary information. In some cases, the duty of confidence may also extend to personal information, such as medical records or financial information.

When can you legally break Confidentiality?

There are situations where confidentiality may be legally broken. For example, if a company is required to disclose information by law or court order, it may be forced to break confidentiality.

Additionally, if there is reason to believe that disclosure is necessary to prevent imminent harm, confidentiality may be broken in order to protect the health and safety of individuals. In general, confidentiality should only be broken in situations where there is a clear legal or ethical justification for doing so. Otherwise, businesses risk damaging their relationships and losing the trust of their clients.

What happens if you break confidentiality?

When you are given confidential information, it is important to remember that this information is not meant for public consumption. If you break confidentiality, you could face serious consequences, including legal action.

In some cases, breaking confidentiality can also lead to a loss of trust, which can damage relationships and make it difficult to do business in the future. When you sign a non-disclosure agreement, you are agreeing to keep information confidential.

If you break this agreement, you could be sued for breach of contract. In addition, divulging confidential information can have a negative impact on the person or company who entrusted you with this information.

They may feel betrayed and choose to sever ties with you as a result. It is important to take confidentiality agreements seriously and to think carefully before sharing any sensitive information.

Can therapists break confidentiality?

In Australia, therapists are bound by confidentiality except in very specific circumstances. These circumstances include if the client is at risk of harming themselves or others, if there is suspicion of child abuse, or if the therapist is ordered to disclose information by a court. In all other cases, therapists must keep information disclosed to them by clients confidential.

This means that they cannot share this information with anyone without the client’s expressed permission. The only exception to this rule is if the therapist believes that disclosure is necessary to prevent serious harm. In such cases, the therapist may choose to break confidentiality in order to contact authorities or take other appropriate measures.

Does confidentiality apply after death?

In Australia, the concept of confidentiality is closely linked to the law of privacy. The law of privacy protects an individual's right to keep their personal information confidential and private. After someone dies, their right to privacy is transferred to their estate.

This means that the executor of the estate has a duty to keep the deceased person's information confidential.

However, there are some exceptions to this rule. For example, if the deceased person has left instructions in their will for their information to be disclosed after their death, then the executor may disclose this information.

In addition, if the disclosure of information is necessary to prevent a crime or protect public safety, then the executor may also disclose this information.

What is the difference between confidential and commercial in confidence?

The terms confidential and commercial in confidence are often used interchangeably, but there is a key difference between the two. Something that is considered confidential is meant to be kept secret, while something that is commercial in confidence may be shared with those who have a need to know.

For example, a company's financial records would be considered confidential, while the existence of a new product line would be considered commercial in confidence.

In general, information that is considered confidential is more sensitive, and its disclosure could lead to negative consequences. As such, it is important to be aware of the distinction between the two terms.

The Complete Due Diligence Checklist for Buying Commercial Property | KMB Legal

katie@kmblegal.com.au (Katie Chan) — Mon, 16 May 2022 12:06:40 GMT

The Complete Due Diligence Checklist for Buying Commercial Property: 10 Steps to Take

There are a number of factors to consider before purchasing commercial property. Location is key, and you'll want to make sure the property is situated in an area that is conducive to business activity.

The condition of the property is also important, as you'll want to ensure it is up to standard and able to accommodate your needs. You'll also need to consider the size of the property and whether it is large enough to accommodate your business. Finally, you'll need to think about the price of the property and whether it is within your budget.

There are several factors to look into, which is why due diligence when buying commercial property is important.

Let’s dig into this in detail.

What is due diligence?

Due diligence is the process of researching a potential investment in order to reduce the risk of financial losses. Due diligence for buying a commercial property typically involves investigating the property’s condition, location, and zoning regulations. It may also involve running a background check on the sellers and checking for liens or other encumbrances on the property. By taking the time to do their due diligence, investors can minimize the risks associated with commercial real estate purchases.

Due Diligence Checklist when buying a commercial property

1. Location

Is the property located in a desirable area? Consider things like foot traffic, public transport and parking.

Location is often one of the most important factors to consider when searching for a new home or business. It can impact everything from commute times to the type of amenities that are available. That's why it's so important to include it in your due diligence process when considering a new location. Here are just a few of the things you should keep in mind:

Zoning regulations: Make sure you're aware of any zoning regulations that could impact your use of the property.
Crime rates: If you're looking for a safe neighborhood, be sure to check out the crime rates for the area.
Proximity to amenities: How close is the property to schools, shopping, and other amenities?

2. Zoning

Is the property zoned for commercial use? Check with your local council to confirm.

Zoning is an important consideration in any real estate transaction. It regulates the use of land for commercial, industrial, or residential purposes. Zoning ordinances can vary greatly from one municipality to another, so it is important to be familiar with the zoning regulations in the area where the property is located.

Zoning can have a significant impact on the value of a property, as well as on its future development potential. For these reasons, it is essential to include zoning in any due diligence checklist. A knowledgeable town plannercan help to identify any potential zoning issues that may affect the property.

3. Building condition

Get a building inspection to assess the condition of the property and identify any potential repairs or renovations that may need to be carried out.

When considering any property purchase, it is essential to carefully inspect the condition of the building. This due diligence will help to ensure that you are fully aware of the potential costs involved in bringing the property up to an appropriate standard.

It will also give you a better understanding of the property's value and its potential resale value. In some cases, the cost of repairs can be so high that it makes more financial sense to walk away from the deal.

However, even if the repairs are not prohibitively expensive, they can still eat into your profits if you're not careful. As such, it is always advisable to consult with a qualified building inspector before making any final decisions.

4. Title

Check the title to ensure there are no encumbrances on the property and that it is registered in the correct name.

One of the most important items on the checklist is title. The title is a document that proves ownership of the property.

It includes information such as the names of the current and previous owners, any liens or encumbrances on the property, and any easements or rights of way.

This information is essential in understanding the property's value and potential risks. Without a thorough title search, you could find yourself locked into a bad investment.

5. Leases

If there are any existing tenants, check their leases to see how much time is left on their terms and what the terms are.

When considering the purchase, it is essential to review all of the leases associated with the property. The terms of the leases can have a significant impact on the value of the property and your ability to generate income from it.

For example, if the current tenants have favorable lease terms, they may be able to stay in place for many years to come. On the other hand, if the leases are due to expire soon, you may need to invest considerable time and money in finding new tenants. In addition, the terms of the leases can also affect your ability to make improvements or changes to the property. As a result, conducting a thorough review of all leases is an essential part of the due diligence process when considering the purchase of a commercial property.

6. Strata

If the property is part of a body corporate scheme, check the body corporate by-laws to see if there are any restrictions on commercial use or any special levies that may be payable. You also want ascertain the amount held in the sinking fund and any proposed expenditure the body corporate intends to make.

In addition to evaluating the condition of the property and its potential for generating income, it is also important to consider the restrictions that may be placed on the property by body corporate by-laws.

These by-laws can impose significant limitations on what can be done with the property, and they can also be costly to change. As a result, it is essential to review the body corporate by-laws before signing any contract.

7. Outgoings

Check what outgoings are payable on the property, such as council rates, water charges and body corporate levies.

One important element of due diligence is to carefully assess all outgoings associated with the property. This includes things like rates, insurance and maintenance costs.

Failure to properly account for outgoings can have a major impact on the profitability of a property and should therefore be given careful consideration.

8. Insurance

Make sure the property is adequately insured for both buildings, public liability and contents cover.

There are a number of potential risks that must be covered by insurance, including fire, flood, theft, and vandalism. In addition, the property owner will be responsible for any injuries that occur on the premises.

As a result, it is essential to make sure that the property is adequately insured before completing the purchase. In most cases, the lender will require that the borrower obtain a policy with coverage limits that are equal to or greater than the value of the loan. By ensuring that the property is properly insured, both the buyer and the lender can protect their investment in the event of any unforeseen damages.

9. Tax

Check with your accountant to see what tax implications there may be in owning the property.

Any potential commercial property investment should include a careful review of the tax situation. This is because taxes can have a significant impact on the bottom line, and they can also vary widely from one location to another.

As a result, it is important to know what the tax burden will be before making a purchase. Furthermore, taxes can also change over time, so it is important to stay up-to-date on the latest rates.

In order to make informed decisions, buyers should work with a qualified tax professional who can help to understand the implications of any potential purchase.

10. Financing

Arrange suitable financing ahead of time so you know how much you can borrow and what the repayments will be.

Funding is a vital part of any commercial property due diligence checklist. The process of assessing a potential property investment can be very costly, and without adequate funding in place, it simply isn't possible to move forward.

There are a number of different ways to finance a commercial property investment, but the most important thing is to make sure that the numbers add up. Once you've found a property that meets your investment criteria, it's essential to work with a professional team to assess the risk and return profile.

Only then can you make an informed decision about how to proceed. Without proper financing in place, it's simply not possible to conduct a thorough due diligence assessment - and that could be costly down the line.

Documents

There are two elements you need to look into before you commit to a commercial real estate purchase, the property and the owner.

For property verification, the following are the basic documents that you need:

Title search
Plan
Any encumbrances that show up on the title, such as easements;
Department of Transport & Main Roads searches;
Contaminated Land;
Rates and water;
Drainage and sewerage plans;
Development/building approval searches;
Soil testing;
Land tax search;
Council Building notices search;
Town planning searches;
Surveyor searches.

These are the basic documents that you need to verify the owner you are making the purchase from:

Litigation searches;
Company search and PPSR search on the owners of the property;
Bankruptcy & PPSR searches if the owners are individuals;
Trust deed if the property is owned by a trust
All relevant financial information such as tax returns, BAS, and financial statements (you should seek advice from your accountant as to what financial information would be relevant for the type of commercial property transactions);
Copy of any leases if the property is leased;
Copy of community management statement and comprehensive body corporate record search, if the property is within a body corporate;
Copies of any management/supplier agreements in relation to the commercial property
Obtain advice from surveyors, town planners, engineers and builders depending on any developments they wish to carry out on the property;

A consultation call with us will clear any doubts you have about documentation. This article does not constitute legal advice.

Physical Site Visit

When considering the purchase of commercial property in Australia, there are a number of factors that should be taken into account during a site visit. First, it is important to assess the condition of the property and identify any potential repair or maintenance issues that may need to be addressed.

Second, it is important to consider the location of the property and whether it is situated in an area that is likely to experience future growth. Third, it is important to review the zoning regulations that apply to the property and ensure that they are compatible with your desired use for the property.

It is important to obtain a comprehensive report from a professional Quantity Surveyor which outlines all of the estimated costs associated with the purchase and ownership of the property. Finally, seek appropriate legal advice about anything that confuses you.

Conclusion

Commercial property is a big investment, and it's important to do your homework before purchasing. By doing your research ahead of time, you can avoid making a costly mistake with your commercial real estate purchase.

There are many factors you need to take into account, from zoning laws to infrastructure needs. Contact KMB legal if you're looking for help understanding all of the legal implications of buying commercial property. We have years of experience in this field and can guide you through every step of the process. Book a free consultation with a commercial lawyer now.

FAQs

How do you prepare for due diligence?

Before starting due diligence, it is important to understand the process and what is needed from you as the business owner. The first step is to compile a list of all the documents that will be requested by the potential buyer. This includes things like financial statements, tax returns, contracts, leases, and insurance policies.

What is an Example of Due Diligence?

When buying property, legal due diligence typically includes things like touring the property, reviewing its financial history, and checking for current zoning changes that could affect its value. Looking into current lease arrangements, car parking arrangements if you plan of starting an establishment that will see a lot of foot traffic may also be important.

What is Standard Due Diligence?

Commercial property buyers usually hire experts to assist with due diligence prior to purchase. These might include environmental consultants to assess the potential for contamination, engineers to evaluate the condition of the buildings and conduct a visual inspection.

Property lawyers can review documents, identify any potential risks and conduct court registry searches. The buyer's team will also conduct a market analysis to determine whether the asking price is reasonable, and they may negotiate with the seller to try to reach a more favourable deal.

In some cases, the buyer may also choose to have a financial appraisal performed in order to get an independent assessment of the property's value.

Parenting Arrangements After Separation: How Does the Court Decide?

katie@kmblegal.com.au (Katie Chan) — Mon, 16 May 2022 10:16:49 GMT

Separation can bring significant changes to a child's everyday life.

Parents may need to decide where their child will live, how much time they will spend with each parent, arrangements for school holidays and special occasions, and how important long-term decisions will be made.

Many parents are able to reach these arrangements themselves. Where they cannot agree, Australian family law does not begin with a fixed formula for how a child's time should be divided.

The central consideration is the best interests of the child .

Is there a presumption that children spend equal time with each parent?

No.

There is no presumption that children should spend 50/50 or equal time with their parents.

The parenting laws changed on 6 May 2024, including the removal of the former presumption of equal shared parental responsibility and the associated provisions that required consideration of equal or substantial and significant time in particular circumstances.

This does not prevent parents from agreeing—or the Court from ordering—that a child spend equal time with each parent where appropriate. It simply means there is no statutory starting point requiring that arrangement.

What does the Court consider when deciding a child's best interests?

Section 60CC of the Family Law Act 1975 sets out the matters the Court must consider.

They include:

arrangements that promote the safety of the child and each person caring for the child, including safety from family violence, abuse, neglect or other harm;
any views expressed by the child;
the child's developmental, psychological, emotional and cultural needs;
each proposed carer's capacity to meet those needs;
the benefit to the child of having relationships with their parents and other significant people, where it is safe to do so; and
anything else relevant to the child's particular circumstances.

Additional considerations apply for an Aboriginal or Torres Strait Islander child concerning the child's right to enjoy their culture.

There is therefore no universal parenting arrangement that the Court simply applies to every family.

Does the child get to choose where they live?

A child's views can be relevant, but there is no particular age at which a child simply decides the outcome.

The Court must consider any views expressed by the child, but the significance given to those views will depend upon the circumstances.

The Act directs the Court to consider matters relevant to the weight given to a child's views, including the child's age and maturity.

Children are also not required to express a view.

In Court proceedings, their views may be obtained through processes such as a Family Report , rather than placing the child in the position of having to choose between their parents.

What role does safety and family violence play?

Safety is expressly included in the current best-interests framework.

The Court considers what arrangements would promote the safety of the child and of each person caring for the child.

When considering safety, it must also consider any history of family violence, abuse or neglect involving the child or a person caring for the child, as well as relevant family violence orders.

Depending on the circumstances, safety concerns may affect where a child lives, how and when they spend time with another person, changeovers, communication and decision-making arrangements.

What can parenting arrangements cover?

Parenting arrangements can extend well beyond deciding where children sleep.

Parenting orders can address matters including:

who a child lives with;
the time a child spends with each parent or other significant people;
how a child communicates with a parent or another person;
allocation of parental responsibility and decision-making;
holidays and special occasions; and
other aspects of the child's care, welfare and development.

Good parenting arrangements also need to be sufficiently practical for the particular family.

The child's age, schooling, activities, parents' work commitments, distance between households and other circumstances may all affect what arrangements are workable.

Who makes important decisions about the child?

Parents generally have parental responsibility for a child under 18, subject to any parenting order.

If the Court makes an order for joint decision-making about a major long-term issue , the people covered by the order must consult each other and make a genuine effort to reach a joint decision.

Major long-term issues can include matters concerning education, health, religious and cultural upbringing, the child's name and significant changes to living arrangements.

The Court can also make orders providing for one person to have sole decision-making responsibility for particular issues where appropriate.

What if we agree on the parenting arrangements?

Parents who reach agreement do not necessarily need a contested Court case.

An agreement can commonly be documented through either a parenting plan or consent orders .

A parenting plan is a written, signed and dated agreement concerning parenting arrangements. It is not itself legally enforceable.

Consent orders are orders made by the Court by agreement. Once made, they are legally binding and enforceable. Even where both parents agree, the Court must be satisfied that proposed parenting orders are in the child's best interests.

The appropriate option depends upon the family's circumstances.

What if we cannot agree?

Parents are generally required to make a genuine effort to resolve parenting disputes through Family Dispute Resolution (FDR) before applying to the Court.

FDR involves an independent registered practitioner assisting parents to try to resolve their disagreement.

There are exceptions to the pre-filing requirement, including in certain circumstances involving family violence, child abuse, risk and urgency.

If agreement still cannot be reached, a parent may apply to the Federal Circuit and Family Court of Australia for parenting orders.

What happens once Court proceedings begin?

The Court may make interim orders while the proceedings are underway and ultimately final parenting orders if the matter does not resolve beforehand.

Depending on the issues, the Court may also have evidence from affidavits, subpoenaed material, expert evidence or a Family Report.

The precise process varies considerably depending upon the complexity and circumstances of the family.

Can grandparents or other significant people be included?

Yes.

Parenting orders are not limited to arrangements between two parents.

The legislation expressly allows applications by grandparents and other people concerned with the child's care, welfare or development, and parenting orders can address time and communication with other significant people.

The child's best interests remain the paramount consideration.

Can parenting arrangements be changed later?

Sometimes .

Informal arrangements and parenting plans can generally be changed by further agreement.

Final parenting orders are different. If one parent seeks to change final orders and the other does not agree, the Court must first consider whether there has been a significant change of circumstances and whether reconsidering the final parenting order would be in the child's best interests.

This is one reason it is important to think carefully about proposed final orders rather than treating them as temporary arrangements.

What should parents focus on after separation?

Parenting disputes can easily become focused on what each parent believes is fair to them.

The legal framework takes a different approach.

The focus is on the particular child—their safety, needs, circumstances, relationships and the arrangements that are in their best interests.

For some families, that may involve substantial or equal time with both parents. For others, a different arrangement may better meet the child's needs.

There is no automatic formula.

Getting legal advice about parenting arrangements

Obtaining legal advice early can help parents understand how the current law applies to their family, what options are available for resolving disagreements and how any agreement should be documented.

It can also help identify issues that should be addressed before arrangements are finalised, particularly where there are safety concerns, significant disagreement about decision-making or existing parenting orders.

Speak with a Gold Coast Family Lawyer

KMB Legal assists parents with parenting arrangements, consent orders, parenting

proceedings and other family law matters across the Gold Coast and Queensland.

We provide considered legal advice and direct access to an experienced solicitor throughout your matter.

Free 30-minute initial telephone consultation.

BOOK A TELEPHONE CONSULTATION

Binding Financial Agreement: Everything you need to know

katie@kmblegal.com.au (Katie Chan) — Wed, 20 Apr 2022 09:18:01 GMT

Binding Financial Agreement: Everything you need to know

In Australia, a financial agreement is a written document that sets out the terms and conditions of how two people share their financial resources. Popularly known as a prenup, a BFA can be used to:

split property and assets between two or more people
set out who pays for what (e.g. who pays the mortgage, who pays for groceries, etc.)
manage and divide money and assets between two or more people
set out what will happen to money and assets if someone dies.

Financial agreements can be made before, during or after a relationship has ended. They can be made by married or de facto couples, or by any two people who are not married or in de facto.

What are the benefits of a financial agreement?

Financial Agreements are important because they can help couples avoid costly and time-consuming legal disputes about money matters and abide by family law. They can also help ensure that each person’s financial interests are taken into account when a relationship ends. Financial Agreements can be tailored to meet the specific needs of each couple and can be amended or cancelled at any time if both parties agree.

There are many benefits to having a BFA, including:

providing clarity and certainty about who owns what and who is responsible for what
avoiding conflict about money and possessions
saving time, stress and legal costs if a relationship breaks down.
maintenance of the family law system

Who can qualify for a Financial Agreement?

Financial Agreements, very similar to prenuptial agreements, are legal agreements between couples that can be used to set out how they will handle their finances during and after their relationship. Financial Agreements can be made before, during, or after a relationship has ended, and can cover issues such as property ownership, asset division, spousal maintenance, and superannuation. Financial Agreements can be entered into by couples who are:

Married
intending to marry
living in a de facto relationship
have separated from a marriage or de facto relationship.

If you and your partner have already entered a BFA, it is important to seek legal advice from a qualified solicitor. This will help ensure that the existing financial agreement is legally binding and will protect your rights and interests.

When is a BFA recommended?

Couples often look at financial agreements in the following situations:

When one party has considerably more assets than the other, an inheritance or a family business they have come into)
When one party has significant obligations from which they wish to protect their spouse
When stakeholders want to protect the business from marital disputes if one of the spouses are a significant part of this business
When one of the spouses needs to provide for others and cannot risk tampering with a situation like that in case of a separation.

Steps to make a Financial Agreement in Australia

If you and your partner are considering entering into a BFA, there are a few things you need to do first.

1. Get legal advice

You must each get independent legal advice from a lawyer before you sign a BFA. This is so you understand what the agreement means and the consequences of signing it. This is also a legal requirement for the BFA to be legally binding under the Family Law Act .

2. Make a financial disclosure

Both parties must make full and frank financial disclosure. This means you must disclose all assets, liabilities, and resources. You must also disclose income, expenses, and debts. This is required so the parties are fully informed about the matrimonial property pool in the event of separation.

3. Draft the agreement

Your lawyer will help you draft the financial agreement. The agreement must include the following:

The names and addresses of the parties involved
The date the agreement was made
Details of each party's assets and liabilities
How the assets and liabilities will be divided
Any other terms and conditions that need to be included

4. Sign the agreement

Once you have both agreed to the terms of the financial agreement, your lawyer will help you to sign it.

5. Independent Legal Advice

As stated above, each party to the financial agreement must have legal advice. The legal advice must be independent by two separate lawyers. Each lawyer must sign a certificate of independent legal advice contained in the BFA.

If you follow these steps, this will help ensure that your BFA will be binding and enforceable in court.

Conclusion

No matter where in the world you are, it is important to have some kind of written agreement in place should you have a relationship breakdown. This will help to ensure that both parties are treated fairly and equitably during and after a divorce. While financial agreements may not be romantic, they can provide peace of mind during what can be a difficult time in the family court.

While prenuptial agreements are not legally required in Australia, they can be very helpful in safeguarding both parties during the marriage. If you are considering getting married, it is important to discuss financial agreements with your partner and seek someone to provide legal advice to ensure that you are protected in the event of a divorce.

FAQs

What should a binding Financial agreement in Australia include?

A binding financial agreement (BFA) is a written agreement under the Family Law Act, 1975 between two or more people that sets out how they will divide their property and finances if they separate. BFAs are commonly used in Australia to help couples avoid the cost and stress of going to court if they decide to break up.

There are a few things that every BFA must include in order to be legally binding:

The names of all the parties involved in the agreement
A statement that each party has received legal advice before signing the agreement
A full disclosure of each party's financial circumstances, including income, assets and debts to make the process of income and property settlement easier.
The terms of how the property and finances will be divided between the parties
The signatures of all the parties involved in the agreement

If you want your BFA to be legally binding, it's important to get independent legal advice before signing it. This means that each party has their own lawyer who can advise them on the implications of signing the agreement.

Can you write your own financial agreement in Australia?

Yes, you can write your own BFA in Australia. However, it is important to seek legal advice to ensure that the agreement is enforceable and meets your specific needs and those of the Family Law Act. A BFA can be a very effective way of ensuring that both parties are fairly compensated in the event of a breakup. It can also help to avoid costly legal disputes.

Since this is not an informal agreement, it is important to be aware of the following:

The agreement must be in writing and signed by both parties
The agreement must be fair and reasonable, and not unduly favour one party over another
The agreement must be made without coercion or duress

Who signs a binding financial agreement in Australia?

Both parties to a marriage or de facto relationship can sign a binding financial agreement in Australia. However, it is important to note that the agreement must be signed by both parties before any property can be divided between them. If one party does not sign the agreement, then the other party will not be able to receive any of the benefits that were outlined in the agreement.

Do binding financial agreements expire in Australia?

No, binding financial agreements do not expire in Australia. They will continue to be binding until they are terminated or amended. This means that both parties must comply with the terms of the agreement, or they may face legal penalties. If you have any questions about your binding financial agreement, it is best to speak with a lawyer.

How does a binding financial agreement work in Australia?

When two people decide to get divorced, they will need to come to an agreement about how they will divide their assets. This can be a difficult process, and often requires the help of a lawyer. In some cases, the couple may choose to enter into a binding financial agreement.

A binding financial agreement is a legally binding contract that sets out how the couple will divide their assets. This can include property, money, investments and superannuation. The agreement can also cover issues such as child support and spousal maintenance.

The agreement must be fair to both parties and must be signed by both parties and their lawyers. Once it is signed, it is legally binding and can only be changed if both parties agree to it.

How do you get legally separated in QLD?

If you are considering a binding financial agreement Qld, it is important to understand the process and what is involved. In most cases, you will need to obtain a separation order from the Court.

The first step is to speak to a family lawyer who can advise you on your options and help you prepare the necessary paperwork. They can also help you to negotiate any financial or property settlements that need to be made.

If you and your spouse are able to come to an agreement about the terms of your separation, you can make a joint application to the Court. If there is disagreement, the Court will need to make a decision on the matter.

Can a binding financial agreement be challenged?

Yes, a binding financial agreement in Australia can be challenged. However, there are certain grounds on which an agreement can be challenged, such as if the agreement was entered into under duress or if it is unfair. If an agreement is successfully challenged, it may be set aside by the court.

What is a separation declaration?

A separation declaration is a document that is filed with the court by one or both spouses in order to begin the process of legally separating. This document outlines the grounds for separation, as well as any other relevant information pertaining to the couple's marriage. It is important to note that a separate declaration is different from a divorce decree, which is the final legal document that dissolves a marriage. A separation declaration is simply the first step in a longer process.

What Is a Deed and When Is It Helpful to Have One in Australia?

katie@kmblegal.com.au (Katie Chan) — Tue, 19 Apr 2022 19:39:22 GMT

What Is a Deed and When Is It Helpful to Have One in Australia?

When dealing with contracts it is important to know what a deed is. A deed is a binding promise to do something that requires no consideration. This is one of the key differences that makes a deed different from an agreement and/or contract.

A deed shows that someone has a serious intent to do what they said they would do with another party. They are most commonly used to pass legal or equitable interests in property, to confirm an agreement between parties, or to create a binding obligation on another party.

Our team at KMB Legal has decades’ worth of collective experience in commercial and family law that allows us to personalise services for the Gold Coast community.

Whether you need assistance for a small business or large enterprise, or you are simply making a deed for a personal situation, we are here to help make it a fast and simple process. We can assist from drafting documents to negotiations, and settling disputes.

If you are preparing to execute a deed there are formalities you will need to adhere to. This article will cover important information you will want to know. Here is what to expect:

What is a deed?
How are deeds and agreements different?
Different types of deeds
Key components of a deed
Are deeds legally binding?
How to execute a deed
Final thoughts
FAQ
What type of deed is commonly used?
What is a deed in a mortgage?
Where are property deeds kept?
What is a deed in property law?
Does a deed need two parties?
What is a settlement deed?
Is there a limitation period for deeds?
Key takeaways
Get your questions answered

What Is a Deed?

A deed is a particular form of legal document which indicates a party’s promise to do something. There are many different types of deeds, and they are specific to their local state or territory.

The common law requirements for executing a deed are for it to be written, sealed and delivered to the other party. People usually create a deed as a solemn indication that they intend to transfer an interest in property or create an obligation they must act on.

A deed becomes contractually binding even without consideration. However, if you fail to follow the guidelines set forth by your local laws you may create a deed that is unenforceable.

How Are Deeds and Agreements Different?

Although they may seem similar, there are two key differences between deeds and agreements.

There are three specifications for making an agreement:

There needs to be a party that makes an offer and a party that accepts that offer
The parties need to have the intention of being legally bound
There needs to be an exchange of consideration (something of value)

The first important difference is there are only two necessary specifications to form a deed. They are that an offer is made and there is an intent to be legally bound. There is no consideration provided when making a deed.

To give a simple example, if you sell something for the money you may need an agreement . But if you are giving something away that does not require consideration you might need a deed.

A second key difference between deeds and agreements is that you only need the deed signed, sealed, and delivered by one party to become a binding agreement. Whereas with an agreement you must have the signature of both parties for it to be legally binding.

Different Types of Deeds

Confidentiality deed
Deed poll
Deed of termination
Escrow deed
Financial guarantee or letter of credit
Indemnity deed
Deed of forbearance
Deed of settlement
Deed of novation
Deed of release

Key Components of a Deed

There are 45 formalities of deeds as outlined by the Property Law Act of 1974 . It states that you do not need to use any formal words to form a deed. But, it must be signed, sealed and delivered by the executing party, with at least one witness.

Other key components are to include the names of involved parties, the date, and any clauses or covenants.

Are Deeds Legally Binding?

Deeds are not just fancy words. Executing a deed does create a binding obligation that becomes legally enforceable.

If there is a breach of a deed you can pursue remedies against the breaching party. The most common is specific performance or damages for breach.

A breach occurring for a deed is more simple to take to court than one concerning an agreement, as it does not require proof that consideration was given.

How To Execute a Deed?

Deeds created for companies require two directors, or one director and the company secretary, to provide their signatures. No witnesses are required. As soon as one party signs the deed it becomes binding. It does not matter if the other party has signed the document or not.

The person signing the deed must write it down and deliver it to the other party.

If you are creating a deed outside of business reasons, then you should have at least one witness to the signature. The witness should be over the age of 18 years old, and must have known you for at least one year. They must include their full name and residential address, and they cannot be a party to the transaction.

You may also wish to seek advice from a legal professional to make sure you execute the deed correctly. The legislation will be specific to each state and if you make a mistake the deed can be unenforceable in court.

Final Thoughts

Deeds can seem easy to create, however, to form a deed that is valid and enforceable, it may be wise to seek legal assistance. A deed executed for a business may be more complicated than one created for personal reasons. The right legal services can help you understand and follow all of the professional standards legislation requirements.

FAQ

What Type of Deed Is Commonly Used?

Deeds of confidentiality are an example of a type of deed commonly used. They are helpful when a party wishes to receive confidential information without providing any consideration.

This piece of contract law protects any confidential information shared between companies, like intellectual property. It includes many clauses that detail the consequences of disclosing information from your confidential discussion.

But there are many other reasons someone might want to use a deed. Here are some of the reasons they are commonly used:

To pass a legal or equitable interest in property or other rights
To confirm an agreement that passes legal interest in property or rights
To bind another party by an obligation
To share intellectual property between two companies
To evidence an agreement that is made after a dispute between two parties
To provide a bank guarantee
To ensure another party does not share confidential information with a non-disclosure deed
To transfer property

What Is a Deed in a Mortgage?

A deed in a mortgage is referred to as a Certificate of Title, or a title deed. It is a document prepared to transfer the property into the name of the buyer. It is a legal document showing who owns the property.

Each Australian state and territory manage their land registries. For example, Titles Queensland manages the digital copies for Queensland. Check with your local agency for specific details.

Where Are Property Deeds Kept?

The government used to hold paper title deeds for every property in Queensland. In 1994 they went digital, and now the Queensland Land Titles Registrar manages them.

Property owners can have a certificate of title if they would like one. But, you must first apply to get one. If you have a mortgage on the property you will need your mortgagee to consent to its issuance as well.

What Is a Deed in Property Law?

A deed in property law comes from the Old System, or general law title passed down from the crown. Most of the land in Australia is now held under the Torrens title system. This includes all of the lands in the Australian capital territory.

However, much of the Northern territory is still under general law. This means it still verifies the validity of the deed of conveyance for the property and ensures proper title for the deed of transfer to be clear.

Does a Deed Need Two Parties?

You do not need two parties to become legally bound by a deed. It becomes immediately binding when the executing party signs it.

What Is a Settlement Deed?

You can use a deed of settlement when you are in a commercial dispute and have reached an agreement for a resolution that you are ready to formalise. A deed of settlement will make sure that the agreement is satisfied. If it is not, the breaching party can be taken to court.

Is There a Limitation Period for Deeds?

There is a limitation period for bringing a deed to court. It can vary by state so check for current time frames in your specific location. The limitation periods start at the point when the breach, or dispute, first occurred.

At the time of this article, the limitation periods are:

New South Wales limitation period - 12 years
Queensland limitation period - 12 years
Australian Capital Territory limitation period - 12 years
Western Australia limitation period - 12 years
Tasmania limitation period - 12 years
South Australia limitation period - 15 years
Victoria limitation period - 15 years

Key Takeaways

Remember, the major difference between a deed and an agreement is that there is no consideration required for the creation of a deed, and only the person executing the deed needs to sign it to be legally binding.

They are commonly used to show that someone has the most serious indication to do something. They often serve as evidence that property interest or something similar is being exchanged.

You should check with the legislation specific to your state, region, or territory to find out the specifics when entering into any agreements, as modern contract law can change frequently.

It is always a good idea to seek out legal guidance when you plan to create legal relations. A professional legal team can provide advice and assistance. This can save time and cost that might arise from mistakes when trying to do it yourself.

Get Your Questions Answered

Let our team at KMB Legal help you with your deed creation. We can assist in drafting fully enforceable deeds you can rely on should you experience a breach down the road.

If you seek specific advice about a deed that has already been executed we can help you sort any questions. Please contact us for a free consultation .

What is a Memorandum of Understanding (MOU) & Why Use One?

katie@kmblegal.com.au (Katie Chan) — Mon, 28 Mar 2022 11:27:31 GMT

What is a Memorandum of Understanding (MOU) And Why Use One?

A memorandum of understanding (MOU) is a legal document that sets forth the agreement between two parties. This is usually a commercial relationship.

It spells out the terms and conditions of the relationship, and establishes the responsibilities of each party.

A MOU can be used to establish a business partnership, outline the terms of a contract, or govern any other type of relationship. Whether in Australia or overseas, the MOU always serves as an outline for a formal contract, and is rarely considered a legally binding document.

Here's what makes a MOU different.

A Memorandum of Understanding is not a contract, though it sounds like one. It is not legally binding, and does not create any legal rights or obligations. However, it can be used as the basis for a future contract. A MOU can also be helpful in resolving disputes, since it provides a written record of the agreement between the parties.

Despite the fact that the Memorandum of Understanding is not a legally enforceable document, it still serves a very important purpose.

The terms of a MOU are often less detailed than those in a contract. This is because a MOU is not a legally binding agreement. It is also shorter and less formal than a contract.

What is the purpose of MOU?

MOUs are used to establish mutual goals between two or more parties. By setting out specific objectives and working together, both sides can benefit from the agreement and eventually create legally binding obligations. MOUs can be used for a variety of purposes, such as developing a business relationship, sharing knowledge, or co-operating on a project.

The Memorandum of Understanding can be useful for both businesses and individuals. For example, if you're starting a new business, you can use a MOU to outline the terms of your working relationship with suppliers and customers. This will help to avoid any misunderstandings when entering a formal contract further down the line.

Individuals can also use MOUs to formalise a binding contract between friends or family members. For example, if two people want to share a car, they could draw up a MOU to set out the terms of their agreement.

MOUs are generally not legally binding, but they can be helpful in setting out the expectations of both parties involved. If one party breaches the agreement, the other party may have grounds for taking legal action.

When drafting an MOU, it's important to make sure that all parties involved are aware of what's included. The document should be clear and concise, and it should spell out the consequences of breaking the agreement. It's also a good idea to have a lawyer from a commercial law firm review the MOU before signing it.

Types of MOU

There are two types of Memorandum of Understanding: bilateral, and multilateral.

A bilateral memorandum of understanding is an agreement between two parties, while a multilateral memorandum of understanding is an agreement between more than two parties.

What is a Bilateral MOU?

A bilateral memorandum of understanding is a type of preliminary written agreement that two parties make. This type of agreement is usually used to outline the responsibilities of each party, and can be used for a number of different reasons.

What is a Multilateral MOU?

A multilateral memorandum of understanding is an agreement between more than two parties. This type of agreement is often used when multiple parties want to work together on a project or goal. This can also help to outline the responsibilities of each party.

Key Components of MOU

The key components of an MOU typically include the following:

The names and contact information of the parties involved
The roles of the parties involved
The purpose of the agreement
The governing law
The effective date of the agreement
The shared goal
Important dates and commitments
Dispute resolution measures
The names and contact information of the parties involved

Every MOU is unique, and the content depends on the nature of the partnership. Seek legal advice before you enter further negotiations for understanding legally binding agreements.

MOU vs Contracts: What are the differences?

A MOU is more like a gentlemen’s agreement – it is an agreement that is generally not legally enforceable.. A contract, on the other hand, is a legally binding agreement between two parties. Both parties, however, are focused on a mutually beneficial goal. The difference lies in this– a legal contract is a serious declaration that binds the parties in law, while an MOU just outlines the preferred outcome.

A MOU usually outlines the broad strokes of an agreement, while a contract goes into more specific details. A MOU is typically used as a stepping stone towards a more formal agreement, such as a contract.

In detail, here are the differences between the two.

FAQS

Does MOU need to be notarised?

No, an MOU does not need to be notarised. However, both parties may wish to have the document witnessed and/or signed by a third party as a show of good faith. If either party plans to enforce the terms of the MOU in court, they may want to consider having the document notarised as additional evidence.

How long is a MOU valid?

An MOU is typically valid for a period of two to three years. After that, the agreement may be renewed or renegotiated as needed.

Is MOU valid in court?

There is no definitive answer to this question, as the validity of an MOU may vary depending on wide variety of factors such as the specifics of the agreement, the jurisdiction in which it is being enforced, the intentions of the parties and the circumstances surrounding the agreement itself.

However, in general, a MOU is more likely to be upheld in court if it is clear, concise, and includes all relevant information regarding the parties' obligations and rights. Additionally, both parties must sign the MOU for it to be legally binding. If one party refuses to sign, a court may not enforce the agreement.

What is the difference between an MOU and a MOA?

In Australia, a MOU, or memorandum of understanding, is a less formal agreement between two parties, whereas a MOA, or memorandum of agreement, is a more formal and binding agreement. A MOU typically outlines the terms of an agreement in less detail than a MOA, and is not legally binding. A MOA is more detailed and specific, and is legally binding.

A MOU is also less likely to be litigated than a MOA.

Can a MOU be cancelled in Australia?

Yes, a MOU can be canceled. However, the process for canceling a MOU varies depending on the terms of the agreement. In some cases, either party may cancel the MOU by providing written notice to the other party. In other cases, cancellation may only be allowed if both parties agree to it. If there is a dispute over whether or not an MOU can be canceled, the dispute may need to be resolved in court.

How do I terminate a MOU?

The steps for terminating an MOU are relatively simple. The parties simply need to agree on the termination and notify the other party in writing.

Once the termination is agreed upon, each party needs to provide written notification of the termination to the other party. This can be done through email, a formal letter, or even a phone call. It is important to make sure that the notification is clear and concise, so that there is no confusion about the end of the MOU.

Once the other party has been notified, the MOU is considered terminated. Both parties are then free to pursue other agreements or relationships. It is important to note that, depending on the terms of the MOU, there may be certain conditions or requirements that must be met before the MOU can be terminated. For example, some MOUs may require a certain notice period before termination can occur. Be sure to check the terms of your MOU before taking any action to terminate it.

What happens when a MOU expires?

When an MOU expires, the terms and conditions of the agreement are no longer in effect. The parties are free to renegotiate the terms of the agreement, or terminate the agreement entirely. If the MOU is renewed, the new agreement will contain updated terms and conditions that reflect any changes in the parties' circumstances.

Is a MOU an enforceable contract?

An MOU itself is generally not a legally binding contract, but it can be used as evidence of an agreement between two or more parties. An MOU may also include provisions that are legally binding, such as provisions related to confidentiality or non-compete agreements. Generally, a MOU will be less formal than a contract and may be easier to negotiate and execute.

How much detail does my Memorandum of Understanding need?

The amount of detail you need in a Memorandum of Understanding (MOU) depends on the complexity of the project and the level of detail you want to cover. An MOU can be as simple or as detailed as you need it to be. You may want to consult with a lawyer to help you draft an MOU that is specific to your project.

Some key items to consider when drafting an MOU include:

The purpose of the MOU
The parties involved
The project scope and timeline

Online Contracts: A Helpful Guide Before Signing

katie@kmblegal.com.au (Katie Chan) — Mon, 28 Mar 2022 10:20:43 GMT

Online Contracts: A Helpful Guide Before Signing

This guide to online contracts should help demystify the legal ins and outs of online contracts and determine if your contract is enforceable in Australia.

What is an online contract?

An online contract is a legal agreement that is created and executed electronically. It can be used for a variety of transactions, including the purchase of goods or services, the lease of property, or the establishment of a business relationship. This can include, but is not limited to, emails, text messages, and chat applications.

Online contracts are becoming increasingly popular due to their convenience and flexibility. They can be accessed from anywhere with an internet connection, and they can be signed electronically, which makes them faster and easier to execute than traditional paper contracts.

Types of online contracts

There are different types of online contracts. Some common types are:

Clickwrap agreement

A clickwrap agreement is a legally binding contract between two parties that is formed when one party clicks a button or checks a box on a website to signify their acceptance of the terms and conditions of the agreement. The other party is usually the owner of the website.

Clickwrap agreements are commonly used when a person wants to buy something online, sign up for a subscription service, or download software. By clicking the button or checking the box, the person is agreeing to the terms and conditions set forth in the agreement. These terms and conditions can include things like the price of the product or service, the length of the subscription, and the refund policy.

If a person does not agree to the terms and conditions of a clickwrap agreement, they usually cannot proceed with the transaction. This is because clicking the button or checking the box is often considered to be an acceptance of the agreement.

Clickwrap agreements can be enforced in court if there is a dispute between the two parties. This is because they are considered to be legally binding contracts. A party that does not adhere to the terms of a clickwrap agreement may be sued for breach of contract.

Browse wrap agreement

A browse wrap agreement, also known as an "I agree" agreement, is created when a user activates a hyperlink or button to indicate their consent to the terms of service. This type of agreement is generally less formal than a traditional contract, and typically includes fewer protections for the user. Because there is no signature or other form of authentication, a browse wrap agreement can be difficult to enforce in court.

Scroll wrap agreement

A scroll wrap agreement is when the terms and conditions are presented to the user in a scrollable window. The user is required to scroll through the entire agreement before being able to proceed. This type of agreement is often used for lengthy or complex agreements.

Scroll wrap agreements are generally considered to be binding contracts. However, there are some circumstances in which a scroll wrap agreement may not be enforceable. For example, if the terms and conditions are unfair or if the user was not given a reasonable opportunity to read and understand the agreement, a court may find that the agreement is not valid.

Adhesion contract

An adhesion contract is presented on a "take it or leave it" basis. This means that the user does not have an opportunity to negotiate the terms and conditions of the agreement. Adhesion contracts are commonly used for standard forms, such as terms of service agreements and end user license agreements.

Adhesion contracts can be enforceable in court if the terms and conditions are not unfair or unconscionable. However, if a court finds that the terms and conditions of an adhesion contract are unfair or one-sided, they may refuse to enforce the agreement.

Making an online contract

Electronic contracts are not as simple as many people think. In fact, there are different types of online contracts, and each has its own set of rules and regulations. These are the basic steps to be followed when creating an online contract:

Determine the type of contract you need.
Understand the terms and conditions of the contract.
Fill out the necessary information on the contract.
Review the contract before you sign it.
Sign the contract electronically or print it out and sign it physically.
Keep a copy of the signed contract for your records.

Online Contract Features

Electronic contracts are popular because of the convenience they offer. They can be completed quickly and easily online, without the need for paperwork with the help of digital signatures. They are also protected by encryption technology, which makes them more secure than traditional contracts.

There are a few key features that you to know to create online contracts stand out from the crowd:

Ease of use - Online contracts can be completed quickly and easily, without the need for paperwork or signatures. Consult the Electronic Transactions Act in your jurisdiction for more information.
Security - Online business contracts are protected by encryption technology, which makes them more secure than traditional contracts. The Australian Consumer Law is a great guide to follow when making electronic agreements.
Convenience - An electronic contract can be completed from anywhere, at any time.
Flexibility - Online contracts can be adapted to meet the specific needs of the parties involved.
Cost-effective - Online contracts are often cheaper to create and maintain than traditional contracts.

E-contract checklist

Use this checklist to make sure that your e-contract is legally binding. You should consult with a lawyer to ensure that your specific contract meets all legal requirements.

All Parties Must Be Legally Eligible to Contract: This means that they must be of legal age (18 years old in most jurisdictions) and have the mental capacity to understand the terms of the contract. If any party is not legally eligible to contract, contract law states the agreement will not be valid.
There Must Be an Offer and an Acceptance: The contract must contain a clear offer from one party and an acceptance of that offer by the other party. The acceptance must be unequivocal and made in the same form as the offer.
The Contract Must Be Certain: The terms of the contract must be clearly specified and agreed upon by both parties. If there is any ambiguity in the contract, it will likely be interpreted against the party that created the ambiguity.
The Contract Must Not Breach Any Laws: This means that the contract cannot violate any laws or regulations, including local, state, and federal laws. It must also be in compliance with Australian Consumer Laws.
The Contract Must be Signed: In order for a contract to be legally binding, both parties must sign it. If the contract is electronic, then an electronic signature will be acceptable.
The Contract Must be Delivered: The contract must be delivered to the other party in order for it to be legally binding. This can be done through physical delivery or electronically.
There Must Be Consideration: This is the legal term for something of value that is given in exchange for a promise. The consideration must be something that is legally recognised, such as money, goods, or services.
The Contract Must be Enforceable: This means that the parties must have the legal ability to enforce the terms of the contract if it is not honoured. This typically requires that the contract be written in a specific way and that either the parties reside in or the subject matter occurs in a jurisdiction where the contract can be enforced.

FAQs

Can contracts be signed online?

Yes, contracts can be signed online as long as both parties have agreed to the terms. In some cases, an electronic signature may be required in order to validate the contract. It's important to make sure that you have a secure connection when signing any type of contract online.

What are the features of an E-contract?

An E-contract is an online agreement between two or more parties that is formed electronically. It can be in the form of a document, an email, or even a chat message.

Some features of an E-contract include:

The ability to create and sign contracts electronically. This means that you don't need to print out and sign a contract, then scan and email it back. You can simply create the contract online and send it to the other party for signing.
The ability to store contracts electronically. This means that you don't need to keep a physical copy of the contract in a file cabinet. You can store it in the cloud, or even on your computer.
The ability to send contracts electronically. This means that you don't need to mail a contract to the other party. You can simply email it, or even chat with them online.
The ability to access contracts electronically. This means that you don't need to go to a physical location to get a copy of the contract. You can access it online, from anywhere in the world.
The ability to keep track of contract changes electronically. This means that you don't need to make a handwritten note of the changes and hope that you will remember them later.

What is a cross offer?

A cross offer is an offer made by one party to the other party that contradicts the first party's original offer. For example, if Party A offers to sell a product to Party B for $10, and Party B counteroffers to buy the same product from Party A for $5, then this would be considered a cross offer. Sometimes, a cross offer can be used as a way to confuse or mislead the other party into thinking that they are getting a better deal than they actually are.

What is a unilateral contract?

A unilateral contract is when only one party makes a promise. This party is known as the offeror, and the other party is the offeree. The offeror makes an offer, which the offeree can either accept or decline. If the offeree accepts, the contract is formed. If the offeror attempts to withdraw the offer, the offeree can hold them to the contract.

Unilateral contracts are often used in advertising, as they allow businesses to make offers that consumers can either accept or decline. For example, a business may offer a free trial of their product in exchange for the consumer's contact information. If the consumer provides their information and does not cancel the trial within the specified time frame, they are deemed to have accepted the offer and a contract is formed.

Are wagering agreements illegal in Australia?

Wagering agreements are not illegal in Australia, but there are a few things to consider before entering into one. First, make sure that all parties to the agreement are over 18 years of age and that everyone understands the terms of the agreement. Second, be aware that wagering agreements are not enforceable in court unless they meet certain requirements, including being in writing and signed by all parties. Finally, make sure that you understand the risks involved in entering into a wagering agreement, as well as the potential rewards.

If you are considering entering into a wagering agreement, it is important to seek professional advice from a law firm to ensure that the agreement is legal and enforceable.

How can contracts be discharged?

There are several ways in which a contract can be discharged. The most common way is by performance. This means that both parties fulfill their obligations as set out in the contract. If one party fails to perform, the other party may be able to sue for breach of contract.

What is a counteroffer?

A counteroffer is a new offer made by one party in response to an offer from the other party. A counteroffer voids the original offer, creating a new negotiation. When making a counteroffer, it is important to consider the other party's initial offer, their goals and objectives, and your own goals and objectives.

What are the legal issues in a cyber contract?

A cyber contract is a legally binding agreement that is made between two or more parties online. The main advantage of a cyber contract is that it can be easily negotiated and agreed upon by the parties involved. However, there are a few legal issues to consider when entering into a cyber contract.

What are voided contracts?

A voided contract is a formal agreement that is no longer in effect.

If a contract is voided, it is as if the contract never existed in the first place. This means that none of the parties to the contract are legally obligated to fulfill their duties under the agreement.

Everything you need to know about Trusts

Wed, 23 Mar 2022 17:08:53 GMT

Everything you need to know about Trusts

Trusts are an invaluable tool you must consider for running a business and estate planning. They aim to provide financial protection, tax benefits, and long-term support to your loved ones.

However, Trusts have a complex legal structure that makes them difficult to understand. Learning about Trust entities and what they offer can be a little intimidating, but it is the first step in protecting personal assets and estate planning and this guide will help you understand the concept in depth.

Please continue to read to learn about the basis of a Trust, its advantages and disadvantages, and the procedure to set up a Trust.

A Trust is simply an agreement in which one party (known as the trustee) chooses a second party (the trustee) for the job of handling money or assets for a third party (the beneficiary). For example, your grandparents could give their property or money to your father, who passes it to you. A trust allows you to bind this agreement legally, so it complies with the vision of your grandparents.

Trusts make it easier for you to manage your assets by placing them in the hands of a trustee, to pass it onto a specified beneficiary. People use also use trusts to minimise the tax on their assets or income and allow their loved ones to access the assets when they pass away.

So basically, a trust is a legal entity capable of holding assets on behalf of someone. A trust consists of three main parties. These three parties are described below.

The Settlor: The person behind creating the trust is the settlor, grantor, or trust maker. A Settlor donates their property, money, or anything of value as collateral. The Settlor’s job is also to decide the distribution of the assets and create the terms and conditions for the contract.

The Beneficiary: The person who you want to inherit your assets is your beneficiary. The beneficiary gets access to the trust’s assets but not outright ownership because, generally, there are rules attached to a trust. For example, a beneficiary might get to live in a home owned by the trust but not have the right to put it on lease or sell it. Beneficiaries are given the assets of the trust according to the contract and certain triggers set by the settlor. A common trigger is age- for instance, assets get inherited when the beneficiary turns 21.

The Trustee: The entity that looks over the money and fulfils the responsibilities set by the settlor is the trustee. The trustee does not get to own the trust’s property but rather be in charge of the distribution to the beneficiaries. Their job is to make sure that demands set by the settlor are being followed.

A Settlor can also choose to act as a trustee. This usually happens when parents set up trust funds for their children. There can also be multiple trustees or a financial institution (companies dedicated to overseeing the distribution of a trust). The settlor also compensates a Trustee for managing the minor child.

How does a Trust Work?

Estate planning involves determining how an individual's assets will be controlled and distributed among the beneficiaries after they die. This can include bank accounts, real estate, life insurance, artwork, and other valuable assets and even a single debt. Trusts are a popular entity that can make all this planning easier for you. Unlike a company, a Trust is a relationship and not a legal entity.

A trust is established whenever there is a separation of legal ownership from the beneficial or real ownership of an asset. An obligation is imposed upon a person (the trustee) to hold trust property or income for a particular person, or for the benefit of others (beneficiaries).

Placing money or any other assets in a trust allows you to pass it to someone in a systemized way, where you get to set the rules. For example, you can include a “spendthrift clause” in a trust fund so that the assets stay away from any creditors if they want to pursue either the grantor or beneficiary for any unpaid debts.

This means that even if the beneficiary gambles all their personal money and incurs a huge debt, their creditors will not use the trust fund assets. This way, your beneficiary will still have some backup funds to recover from any loss.

Advantages of a Trust

We will be looking at some of the common reasons people choose to create trust funds.

Trusts allow you to create a contract that stays private between you and the beneficiary. The difference between a will and a trust fund is that the will becomes public after the grantor’s death.

You can designate your assets directly to the person you want to inherit your property. If you have gotten remarried, then a trust can help you make sure your children will get access to your assets and not your spouse's children.

Protect your Beneficiaries: if your children are minors and lack the financial situation and skills to manage their property, then you can create a trust so that someone else gets the responsibility to look after the assets on their behalf.

Asset Protection: Many people use trusts to protect their assets. Once you put money into a trust, it becomes difficult for any third party other than the beneficiary to access your assets.

It allows you to limit how old your beneficiary needs to be to receive the assets. In most cases, the legal age for any beneficiary to acquire the trust’s assets is 18. However, you can also choose not to grant the access until your beneficiary reaches the age of 21, 27, or whatever.

It also lets you specify how you want the assets to be used. You will get the option to stipulate that money can only be used for education purposes.

The trust’s payouts can be set to be released in intervals. This will prevent your beneficiary from blowing all the funds assets at once.

Trust funds also let you minimise the real estate taxes so you can offer all your cash to your future generations.

Disadvantages of a Trust

Let us now discuss some of the disadvantages of a Trust.

Once created, trusts tend to favour your heirs inheriting your assets.

Handling the administration of a trust can be a little more complicated than just transferring funds to the beneficiary after the grantor passes away. For example, the trustee may be required to make regular distributions to the beneficiary and record some milestones.

The cost of setting up a trust is also a reason why people choose not to create them.

A trust is not a substitute for estate planning but rather it is an estate planning tool that helps you in the distribution of your assets.

Another disadvantage of a trust is that you must pay taxes on any income generated through its investments.

Different Types of Trust

There are many different types of Trust; depending upon your aim or the kind of assets you are trying to protect, some of them will specifically suit your needs better than the others. Let us now understand each one of these types in detail.

- Discretionary trust

In a Discretionary trust, one or more beneficiaries can be added. Still, the grantor is given complete discretion as to when and how many funds go to the beneficiaries.

The amount of assets that beneficiaries of a Discretionary trust receive is not fixed; even the beneficiaries are also not fixed. The Grantor has the power to set up the terms and time frames as broad or as limited as needed. For example, the settlor can set the distributions of income only for health care needs once the beneficiary turns 21, or the distributions for health care and educational needs can be made at any age.

It is a type of trust that aims to provide the settlor with the best flexibility and controls. This means protecting assets from the beneficiary's poor money-management skills, extravagant spending issues, or divorcing spouse.

Another good thing about incorporating discretionary trust into your estate plan is that it can help you to minimise the estate tax as the trust assets can be passed down to multiple generations, from your children to your grandchildren. (This is called “generation-skipping planning”). Additionally, it allows the trustee to dictate who will inherit the money left in the beneficiary’s trust when the beneficiary passes away; the trust assets can be kept in the family.

- Unit Trust

A Unit investment trust (UIT) is an older form of investment that has become quite unpopular over the last few decades. However, it still has some features that might appeal to investors. UITs share many similarities to mutual funds and exchange-traded funds as they are a tree of investments that pool multiple branches (investors) together.

In simple words, UITs are a type of legal trust that is not set up to transfer assets to a person or a cause but instead act as an investment tool. For example, in a UTI d, many investors open a single trust to purchase stock shares, bonds, and other securities.

There is a fund manager in every unit trust that overlooks the investment and divides the trust into different asset classes to reduce the risk. The unit trust is then divided into parts in accordance with the investors’ respective units held in the trust. Investors then hope to make more money as the unit’s value increases over time.

Investors can exit the fund by selling their units at the bid price to profit. The bid price needs to be higher than they initially paid for the unit(s). The main advantage of Unit trusts is that they help you to spread your money across different investments; Diversifying investments reduces the risk of loss.

- Hybrid Trusts

As the name suggests, a hybrid trust is generally a hybrid form of a discretionary and unit trust. Hybrid is a generic term used for a trust that shares similar elements from the previously mentioned trust types. This type of trust is quite appealing as it includes both advantages of both and offers a useful structure.

Hybrid trusts allow the rights and requirements of both the beneficiaries and grantor to be respected while still providing a flexible income and capital distribution between all the parties.

People choose to open this trust because of the income tax, asset protection, and capital gains tax attached to a hybrid trust. All this becomes relevant when there are more than two parties involved. For example, two separate families plan to buy a commercial property together.

The cost of creating a Hybrid trust is usually higher than setting up a unit or discretionary trust. Still, they offer more flexibility with tax planning and benefits that can be passed down to beneficiaries without any change in the ownership of the investment.

There are also revocable trusts whereby provisions and rules can be altered by the grantor. Similarly, the grantor cannot modify assets or terms without the beneficiary’s permission in an irrevocable truss.

Setting up a Trust

To set up a Trust, the logical first step is to identify the type of trust that suits your requirements the best. Of course, each of the mentioned types of trust has different set-up procedures and requirements. However, some of the common elements of a trust are discussed below.

1. Declaring assets

You will first have to create a list of the assets with their value that you want to include within your trust.

2. Appointing trustee

The next step is to hire an individual or multiple people you trust to overlook your assets. You can also choose to hire a management company with the legal process and authority to look over the distribution of your assets. We at KMB Legal provide you with skilled professionals that can help through effective solutions on your personal or business matters while shrinking the costs.

3. Determine the beneficiaries

The settlor will now have to create a list of beneficiaries who will receive the access and benefits of the trust. At this step, the settlor also decides the percentage of each beneficiary's assets.

4. Outline Terms

Lastly, the settlor has to focus on the trust deed composition. It is the legal document that helps the trustees set up and manage the rules and conditions of the trust.

How to Operate a Trust

Trusts are managed by individual trustees, trust departments of banks, and other financial institutions. Their responsibilities include disposition of funds, collection of income, distribution to beneficiaries, and replacement of assets.

The management of a trust includes record-keeping, reporting, and tax compliance. The individual or bank that manages all this for the trust’s grantor usually charges some fee. In addition to this fee, they can also charge expenses for financial and investment advisors, accountants, lawyers, brokers, property managers, and other professionals required in the trust.

Some firms allow individuals to establish trust fund accounts online with low-cost trust services. However, if you need a substantial trust with varied assets, you will have to incur significant costs for its formation and operations. This is why it is essential to consider the costs and find the best arrangements to save you on maintenance fees.

FAQ

Lastly, let us answer some of the most frequently asked questions about Trusts.

How do Trusts payout?

The grantor decides the payout of trusts while setting up the trust fund. The trust can pay a lump sum when the time period ends, or incremental payments can be made throughout the years. The grantor gets to choose distributions and payout terms of the trust however they want it to be.

How Trusts Get Taxed?

Different types of trusts are taxed differently, depending upon various factors. For example, the beneficiaries are charged a tax deduction from their income distributed to them. So, in this case, the beneficiary has to pay income tax rather than the grantor.

There is also a capital gains tax that is either paid through by the trust or the beneficiary. The complete amount distributed for the beneficiary's benefit is taxable. You should contact your trustee to find out the exact details of taxes in your case.

How do I start a Trust fund?

To start a trust fund, firstly, you will have to choose the type of trust you want to create. Then you will have to decide the trust details such as beneficiaries, trustees, etc. After that, you should hire an estate planning attorney to create a declaration of trust to formalise everything.

Who would set up a trust?

A trustee is an individual or institution with the financial responsibility to set up and manage your trust assets. In some cases, the grantor can also act as a trustee, and even trusted relatives or friends can also act as a trustee. However, you should prefer a corporate trustee if you want to serve for many future generations to come because a corporate trustee does not come with an expiry date and its legal liability is also limited.

Can I withdraw money from my trust?

When you set up a trust and name someone else as your trustee, it can be an excellent decision to mention in your trust that you are allowed to request cash withdrawals at any time. This is because to withdraw cash from your trustee, you will have to get the trustee's permission. There also may be some fees on transferring or removing assets from the fund, so be aware of those charges.

Can a trustee go to Jail for stealing from a trust?

Yes, a trustee can be jailed for theft if they ever steal from a trust.

How many trustees can a trust have?

There can be more than one trustee and more than one beneficiary in a Trust.

Can you use trust money to buy a house?

A trust can get a mortgage or home loan from any traditional lender, but the trust's grantor needs to be alive to request a home loan.

Does a trust need a bank account?

Trusts need to have a trust checking account which is a bank account held by the trust. The trustees can also access this bank account to facilitate transactions, as decided by the trust deed.

What assets cannot be placed in a trust?

Retirement accounts, Medical Savings accounts, Active financial accounts, and vehicles are some of the assets you cannot place in a trust.

Is it better to leave a will or a trust?

It is very common for people to get confused between a will and a trust since they have a lot of overlap. Both of them are to decide who will receive your assets, but they do it in different ways.

One significant difference is that a will doesn’t go into effect until you pass away. On the other hand, a trust is active and functioning immediately after its funding. As a result, creating a trust is a bit more complicated but offers some great benefits, such as total control over the distribution of assets and tax minimisation.

Why should you put your home in a trust?

You can avoid probate by putting your home in a trust fund. Additionally, it also helps you keep the details of your real estate private. This is because the probate process will make all the records public while passing down your property from a grantor to a beneficiary will keep everything confidential.

What happens to a trust when somebody dies?

When the grantor passes away, the trustee takes over to look after the funds and distribute them in the manner the grantor decided to.

What happens when you inherit money from a trust?

When you inherit money from a trust, you should contact the trustee or a lawyer to help you file tax returns on the received assets. Every region has different taxing rules, so you must report and pay the appropriate taxes.

Conclusion

By now, you must have got the answer to “what is a trust.” It is a way to provide financial support to your loved ones after you are no longer there. It is an essential part of estate planning and can help you control your assets' distribution.

While you do need to bear some costs to maintain a trust fund, they can provide you great peace of mind and tax benefits. You can choose to go with KMB legal to help setup your trust.

Unlike other trust services, our skilled professionals exclusively deal with daily trust inquiries. Furthermore, we make sure that the solutions provided by our trust experts are individually tailored to fit your personal needs the best!

Joint Tenants VS Tenants In Common: Which is Best For You?

katie@kmblegal.com.au (Katie Chan) — Wed, 24 Nov 2021 03:03:46 GMT

Joint Tenants VS Tenants In Common: Which is Best For You?

So you're finally ready to make that move. Yes, buying a house is a major accomplishment. Since it's one of the most significant investments an individual can make, many people decide to jump into homeownership with a partner.

After all, property costs have skyrocketed in the last few years. Did you know that the average asking price in Australia is $852,940?

Whether you've decided to purchase a house with a spouse, a friend, or a business partner, it's important to know exactly what type of agreement you're entering.

Types Of Joint Property Ownership

In property law, there are two main types of joint ownership:

Tenants in common
Joint tenancy

No doubt, at a quick glance, these terms may appear to be similar. Yet, there are vast legal and financial differences between these two. It is crucial to understand the legal implications of joint tenancy and tenants in common should one of the owners pass away or decide to sell their share of the property.

In this article, we'll explore the differences between joint tenancy, tenants in common, and how to determine which option is best for your situation.

Understanding Tenants In Common

When you decide to purchase property with one or more individuals, you have the option of entering into a tenants in common agreement. In this type of legal arrangement, the individuals involved can share equal ownership, or they may all own varying percentages of the property. For instance, one co-owner may have 75% interest vested in the house while the other owns 25% of the property.

Tenants in common agreements are flexible, and it clearly defines each owner's share of the property. In addition, it allows each owner to manage their interests independently and can be beneficial for tax purposes.

Joint Tenancy Explained

In a joint tenancy arrangement, both buyers have equal ownership and interest in the real estate property. Typically, married couples, family members, or longtime friends tend to enter joint tenancy arrangements.

If two or more individuals have a joint tenancy, they don't have an individual interest in the property. In this type of co-ownership agreement, it doesn't matter how much money each individual contributed to purchasing the property. Everyone shares equal interests and rights.

What Is The Difference Between Joint Tenancy and Tenants In Common

So, what's the main difference between the two proprietorships? The biggest distinction between joint tenancy and tenants in common is what happens to the property when one of the owners passes away.

In a joint tenancy, the rights of survivorship exist. This means that if one of the tenants in the joint tenancy passes away, by law, their portion of the real estate property automatically passes to the surviving tenant in that agreement.

The right of survivorship laws is rigid. The living tenant becomes the sole owner of the property regardless of contrary wishes expressed in a will.

Unfortunately, in tenants in common agreements, there are no rights of survivorship. Therefore, in the event of one of the tenants' death, their interest in the property becomes part of their deceased estate, and it doesn't pass on to the surviving tenants. In most cases, the deceased tenant's beneficiary will inherit their share in the property.

What Is The Advantage of Being Tenants In Common?

Purchasing a property as tenants in common offers several benefits. Most people dream of being free from the shackles of renting and relish in the idea of being able to own a house of their own where they can decorate as they wish. However, due to financial constraints, sole ownership isn't possible for everyone.

Tenants in common is a joint ownership option that allows a group of individuals such as blended families to pull together their resources to purchase a home. Whether the property is equally or disproportionately owned, all of the tenants in a tenants in common agreement have equal rights of access to the home.

Here are additional advantages of entering tenants in common agreement:

Every tenant in the agreement owns the asset
Each tenant has the legal right to sell their shares in the property
Tenants in the agreement can pass on their interest in the property to their beneficiary in their will

What Are The Disadvantages Of Tenants In Common?

Although tenants in common agreements can be appealing because of their flexibility, this arrangement can be very complex. They become even more complicated when the relationship between the property owners starts to change.

Having a Declaration of Trust can be beneficial for tenants in common agreements because it clearly specifies each tenant or owner's financial obligations and interests in the agreement.

It should also include an exit clause to govern how the property is sold even when all parties aren't in agreement. The Declaration of Trust serves as a protection for each party involved should conflict arise.

The main disadvantages of tenants in common agreements are:

All of the co-owners have to sign the transfer deed to sell the whole property
There are no rules that dictate how each owner sells their share of the property

What Happens To Tenants In Common When One Dies

When one of the owners in tenants in common agreement dies, their share of the property is subject to succession laws. This means that their interest in the home is transferred to the deceased estate and dealt with in accordance with the will. The interest in the real estate property wouldn't pass to the surviving owners in the tenants in common agreement.

Can A Married Couple Be Tenants In Common

Joint tenancy arrangements are quite common between married couples interested in purchasing a home together. However, some married couples might decide to hold a title to an investment property as tenants in common.

Like any other tenants in a common agreement, each party has the right to sell their interest in the property as they desire, and they'll both need to sign the transfer deed if they decide to put the property back on the market.

When a married couple decides to enter a tenants in common agreement, if one partner passes away, the surviving spouse doesn’t automatically inherit their interest in the property. The deceased spouse’s fractional shares are passed on to whoever they specify in their will. If there is no will in place, their fractional share in the home will be subject to intestate laws.

Do Tenants In Common Pay Inheritance Tax?

In Australia, there are no inheritance taxes or estate taxes . Therefore, if an individual inherits interests in a tenants in common property previously owned by their deceased kin, they don't have to worry about paying inheritance taxes.

Can A Sale Be Forced In Tenants In Common?

What happens when one of the co-owners in a tenants in common agreement wants to sell the whole property? Things can get tricky if one or more parties in the agreement refuse to sign off on the transfer deed.

You might be wondering if one of the co-owners can force the sale of the property. That largely depends on the state and territory. Every state in Australia has differing property laws.

Do Tenants In Common Own Equal Shares?

As previously mentioned, in a tenants in common arrangement, owners can have eitherequal ownership in the real estate property or different shares in the property. One party may have 65% interest in the house while the other owner only has 35% interest in the property.

Do You Need To Go Through Probate For Tenants In Common?

When one of the owners in a tenants in common agreement dies, their fractional share in the property passes to their deceaed estate. As a result, a grant of probate issued by the Supreme Court is necessary to transfer the ownership of the property to their next of kin or their beneficiary.

In a joint tenancy agreement, the deceased co-owner's interest in the property instantly passes to the surviving tenant, so there is no need for probate.

Can I Sell My Shares Of Tenants In Common

Each tenant or owner in a tenants in common arrangement has complete control of their portion of the property. This means that they can sell their interest in a property to whoever they want without seeking permission or informing the other owners.

Joint Tenancy or Tenants In Common Which Proprietorship Is Right For You?

As you can see, joint tenancy and tenants in common agreements have both their advantages and disadvantages. Yet, the key feature between these two types of ownership is the right to survivorship.

Everyone has different needs and preferences. It's best to consult an experienced lawyer to help you determine which option is best for you based on your unique situation and how you can protect yourself when making such an investment.

What to look out for in a franchise agreement

Sun, 14 Mar 2021 22:15:01 GMT

What to look out for in a franchise agreement

The franchise route can be a safe start to your entrepreneurial journey or the expansion of your business interests. With an established and proven track record, add commitment and hard work and you could be on your way to entrepreneurial success. Indeed, it has been argued that buying into a franchise is likely to yield the results one would expect compared to starting out completely on your own (1).

While the picture appears rosy, like in many relationships, there will be challenges from time to time, be they opportunities or problems. When they surface, there needs to be a mechanism to address them in a manner of mutual benefit to all parties. In this regard, a franchise agreement plays a vital role.

What is a franchise agreement?

Essentially, it is a written document that spells out the terms and conditions of the business relationship, or franchise arrangement entered between the franchisor (the business/person issuing the franchise licence) and the franchisee (the business/person buying the franchise licence).

A typical franchise agreement has 4 parts to it:

1. Terms governing the operations of the business

2. Franchisors' roles and responsibilities as well as obligations

3. Franchisees' roles and responsibilities as well as obligations

4. Steps and procedures applicable to the prospective franchisee prior to issuance of the franchise licence

In addition, there are two important facts to note:

1. A franchise agreement is not a business sales agreement

2. Franchise agreements will differ from business to business

Apart from the franchise agreement, there are laws and rules governing the conduct of franchised businesses as well as a Franchising Code of Conduct. Some of the details in them may be written into or referred to in the franchise agreement.

Franchise agreement and what you should look for in one.

1. The right to use the franchisor’s brand

This is imperative. It needs to be explicit in the franchising agreement that the use of the franchisor’s brand is permissible. The strength of the small business owners is embedded in the brand name.

2. Details pertaining to operating under the franchise brand

As prospective franchisees, it’s important you are aware of the franchising code, franchise agreement grants, and terms and conditions governing the use of the brand. Inappropriate or not permissible use of the brand may result in a breach of the franchise agreement.

3. Territories

Every franchisee is typically given an exclusive territory in which it can operate to avoid intra-franchisee competition. You may be granted more than one territory depending on the competing business. Whatever the number is, it’s important they are spelt out in the franchise agreement.

4. Initial franchise fee and costs associated with the purchase of the franchise

This is an area of the franchise agreement that must be sorted out early in the relationship. The figures vary across different types of businesses as well as operating models.

5. Advertising and branding obligations

This is often referred to as the marketing fee or ongoing fees. In a franchised business model, the cost of advertising and branding may be split into local and state or nationwide marketing fees. For the latter, there’s usually a common fund you’ll need to contribute towards. With the former, the franchisor may stipulate a sum relevant to your territory.

6. Intellectual property

From the brand name and logo to the actual product or service, the franchisor would have invested time and money into developing them and ensuring they work. It is their intellectual property. You will need to be aware of them to ensure you're using them correctly.

7. Terms and conditions pertaining to the renewal of the franchisee

The franchise agreement will spell out the terms and conditions pertaining to renewal as it is never for life. Again, they may vary across franchise agreements.

8. Services provided by the franchisor

A franchise agreement isn’t a hi-and-bye document. You should expect the franchisor to render services to help you get started and operate the business over a period of time. The franchise agreement will detail these services.

9. Training

You or your staff will need to be equipped with the relevant skills and knowledge to give the business a chance to succeed. The franchise agreement should detail the type of training to be provided, the length of time it will be provided and the frequency of training or retraining. It will also detail the party responsible for the training of new staff.

10. Quality control

The quality of products and services impacts directly the success of the business. You will need to know how quality control will be measured by the franchisor as it impacts the day-to-day conduct of the business.

11. Transfer of franchise business

You might choose to transfer your interest in the franchise to another party. This is allowed. However, there will be rules in the business system, or franchise agreement governing it.

12. Expiration of franchise agreements

As a franchise business, there are obligations you will have to fulfil upon the expiration of the franchise system. For example, you may not be allowed to work in the trade for a period of time, either as an independent or competitor franchise.

13. Legal relationship between franchisor and franchisee

Like in any business franchise relationship, its conduct must be governed by rules and regulations. Both parties’ roles and responsibilities, as well as obligations, are detailed in this section.

14. Provision for indemnity and liability

There are parts that are shared and those undertaken by the franchisor or franchisee alone. For example, as a franchisee, you are likely liable for public indemnity insurance of your store as well as workmen compensation for your staff.

15. Non-compete clauses and trade restrictions

You may have multiple business interests or intend to. If they compete against the franchisor’s own business, you may be disqualified or penalised if it was not on the disclosure document.

16. Dispute resolution clauses

Disputes will arise from time to time. When they do, it’s important they are resolved amicably and fairly. A franchise agreement will explain the mechanism to resolve disputes. It is usually the first resort.

To learn more about franchise agreements prior to entering into one, seek legal advice or book a consultation session with one of our legal experts.

1. https://www.smartcompany.com.au/business-advice/franchising/boost-juice-janine-allis-franchises-more-successful-other-small-businesses/

CTP Insurance: Are you covered?

Sun, 07 Mar 2021 22:13:03 GMT

CTP Insurance: Are you covered?

What is Third Party Car Insurance?

Compulsory Third Party Insurance covers compensation payments made to an individual who has suffered injuries arising from a motor vehicle accident.

Compulsory Third Party (CTP) insurance also covers payments made to individuals (often by-way-of Estate representation) who are killed in a car accident.

However, it doesn’t cover the cost of damaged vehicles or property. There are a set of circumstances and general policies worth considering when evaluating your ability to make a claim using compulsory third-party insurance.

1. Who is protected under CTP insurance?

In Australia, every owner of a motor vehicle must hold compulsory third-party CTP insurance. In Queensland and New South Wales, you must acquire compulsory third-party insurance prior to registering your car.

In contrast, CTP insurance is included in the price of registration in Western Australia, Tasmania, Australian Capital Territory, South Australia, and Victoria.

The compulsory third-party car insurance is attached to the vehicle, as opposed to a driver. Therefore, if the injury of driver B was caused by a car accident that occurred due to the fault, or primary fault, of driver A, then driver B can make a claim to the CTP car insurance company of driver A.

In other words, insurance extends to any driver of the motor vehicle and protects any individual who may be injured following the motor vehicle accident caused primarily by the driver of this vehicle.

CTP insurance also covers any member of the community who may be injured or killed in an accident, such as pedestrians or cyclists.

2. What does CTP insurance cover?

Notably, CTP insurance does not protect any damage caused to your vehicles or property, nor will it cover any issues surrounding the theft of the vehicle.

CTP insurance will also not protect you from liability surrounding damage caused to other people's vehicles or property.

CTP insurance will, however, cover the injured person's damages which can include but are not exclusive of, loss of earnings, medical expenses, and future loss of earnings. CTP insurance can also cover emotional loss such as pain and suffering.

3. Can I claim CTP insurance?

Subject to the accident being of no fault, or minimal fault, to the injured driver or victim, the injured party may be able to procure compensation.

The correct procedure which needs to be carried out in order to facilitate whether a claim can be successful is as follows:

A. Police

Ensure to report the accident to the police and complete any relevant documentation within your State or Territory.

B. Fault

Identifying the vehicle at fault is imperative. If the injured party was the vehicle at fault, claims will become limited. However, if the injured party was not the vehicle at fault, then the procedure is relatively easy from this point onwards.

C. Discover CTP insurer

It is important that you receive the details of the driver at fault CTP insurer so that you can make a claim. In Queensland, the CTP insurer can be identified by completing a registration search of the vehicle at fault.

In other States and Territories, this process may differ. In NSW, for example, you can find the CTP insurer of the vehicle at fault via Service NSW Check registration.

D. Follow the insurer's guidelines

Each insurer will have a separate set (however similar) of guidelines that must be followed accurately and effectively. You may wish to contact our firm in order to ensure this process is completed easily.

E. Lodge the claim.

4. Common circumstances where CTP insurance can be claimed

There are many different circumstances in which CTP insurance claims can be made. The primary element to remember is that the injured or killed claimer must not be at fault, or primary fault, for the incident.

For example, if a driver fails to give way and drives through a pedestrian crossing, injuring a person, then the driver is at fault. The pedestrian can therefore make a claim.

Another common set of instances that allow for CTP insurance claims to be made involves cyclists and motor vehicle accidents. If a cyclist is hit by a vehicle, they may lodge a claim.

Motor vehicle accident

Also, if a cyclist uses evasive maneuvers for the purpose of navigating around other vehicles that have made a sudden turn and consequently become injured, they may make a claim.

It is also important to remember that passengers traveling in a vehicle that is at fault in an accident are also able to make a claim if they suffer a personal injury caused during the accident.

5. When will I receive payment?

Every CTP claim will be processed at a different rate, however, on average, claims will be resolved within 12-18 months depending on the circumstances of the case.

Significantly, the CTP claim can be prolonged if the driver of the vehicle you have claimed to be at fault denies responsibility for the accident

The insurer denies liability or your injuries are complicated.

6. Why do I need a lawyer?

You will often hear that CTP insurance claims do not require the employment of a solicitor. However, there are many reasons why hiring a solicitor will greatly, and positively, impact your CTP insurance claim process and successful outcome.

For example, at KMB Legal, our lawyers can help you ensure that the forms are completed accurately and within the relevant time period. The investigation process is often taxing, and therefore a solicitor is an ideal person you can hire to help guide you through this process.

Due to our lawyers' expansive experience with CTP insurance claims, they will be able to provide you with estimates that broadly outline how much the CTP insurance and car insurance claim should be worth.

The time limits surrounding CTP insurance claims, car insurance claims, investigation processes, and other administrative work are extensive, and therefore adhering to such time frames can be stressful for an individual.

Here, at KBL Legal, we seek to aid you in this process and reduce the stress as well as time management issues that arise prior to and following the submission of CTP insurance claims.

CTP insurance claims are an integral element of road safety, protection, and allocation of liability in Australia. It is important to feel confident during the process of making a claim.

10 tips for a successful compensation claim

Mon, 01 Mar 2021 22:01:39 GMT

10 tips for successful compensation claims

Have you suffered an injury due to a third party’s negligence? If so, you will probably seek legal advice or compensation advice for your claim. As the injury can impact your current and future employability, a successful compensation can help regain any economic loss. To ensure you receive everything you’re entitled to, follow these simple tips.

#1 Seek help from our compensation advice claims experts

An injury can alter your life significantly. We understand how challenging it is to handle these changes before your compensation claim is finalized. You may have non-negotiable financial obligations, such as a mortgage, rent, or car payments, for instance. Your injury may force you to consider reducing your work hours, or perhaps ceasing employment entirely. However, this is not practical for most people. Although your health would benefit, the bills keep coming in. If you’re feeling stuck and need someone to speak to, or someone to provide advice, contact, call or email KMB Legal today for expert legal advice.

#2 Regularly follow up with your GP about your injuries

After sustaining a serious injury, consulting your GP regularly is very important. Ensure you inform them of the ongoing impact the injury is having on your physical and/or mental wellbeing. Also, report if you are experiencing an inability to work or enjoy your daily activities.

When visiting your doctor, always let them know if:

• You’ve taken pain relief prior to the appointment to oversee injury management

• You’re suffering chronic pain or are unable to cope with your job due to pain

• You’re suffering anxiety, depression in the present, or any other mental health condition as a result of your injuries

You may not be able to perform domestic chores, such as gardening or home maintenance, for instance. Or, you may be unable to participate in once enjoyed recreational activities, or even have sleep disturbances. Speak to your doctor.

This information is crucial to your compensation claim, so make sure you provide information to your doctor.

#3 Take sick leave (if needed)

When making a compensation claim, you shouldn’t inflate or downplay your injuries. If you notice pain flaring up and find work is making them worse, we advise taking sick leave. Never risk aggravating your personal injury further by continuing to work. Not only could your injury worsen, but you risk allegations your injury is not as serious as you’ve stated. If necessary, take unpaid or holiday leave. And remember to keep a record of the time off you’ve taken due to injury.

#4 Report any problems to supervisors/co-workers

After sustaining an injury, it’s common for employees to find aspects of their jobs more challenging. If you are facing problems at work, feel free to discuss these with your supervisor. However, if you feel reluctant to do this, at least mention the issue with your co-workers. Always seek assistance with duties you find difficult. This allows us to gather statements from your supervisor(s), co-workers, or perhaps both, vouching for the restrictions you are facing in your work.

#5 Cut your work hours (if needed)

Are you facing problems undertaking your regular work hours? Do you feel reducing your hours would assist in your recovery? If so, arrange for fewer hours and see if your injury responds well. Remember, you are not required by law to work in pain.

If you suffer pain during your shift, consult your doctor and ask about injury management whether they believe reduced hours would help.

If they agree, you’ll be issued a medical certificate. This advises that your work hours should be reduced until you deal with your health issues.

It’s important to note that you can only do so before your compensation claims are finalized.

#6 Seek new employment suited to your injuries (if required)

Your doctor may recommend you seek alternative employment or stop working entirely. In this case, you must do so before the compensation claim is finalized. And, as with the above rule, you cannot do so after the claim is finished.

#7 If resigning due to injuries, state this clearly in the resignation letter

In cases when injuries are especially severe, you may have to resign from your job. To ensure the compensation claim process goes smoothly, you must notify your employer in writing. And, make sure your resignation letter clearly states that your injury is the reason you have to leave your job.

#8 Report if employment is terminated

If you are terminated from your job after sustaining your injury and believe this is the sole reason, notify your GP immediately. Tell them that you feel the termination is due to the impact injury is having on your work performance, so they can make a note in your records.

In addition, you must inform your solicitor of any changes in your employment status. This is crucial regardless of whether it is due to termination or reclassification of your duties, as it’s a vital element of your compensation claim.

#9 Provide witness details to income loss

A reliable witness can prove an invaluable part of a successful compensation claim. Ensure you note down and keep a record of your workmates’ contact information.

This will allow our team to gather witness statements from them and provide more information that can speed up the process of compensation claims.

However, keep in mind that memories tend to fade and your co-workers may even switch jobs. So, the sooner you can provide us with this information, the more likely it is we will obtain accurate and favourable statements from them.

#10 Keep records of lost income and expenses (if self-employed)

Are you self-employed and struggling to maintain your workload following an injury? If you answered “yes”, you may be able to employ someone to assist you.

If you pursue this option, it’s important to keep accurate records of extra wages paid and a description of the new employee’s job responsibilities.

However, if you cannot afford to hire extra help or cannot find a suitable candidate, keep clear records of the work you have had to turn down and the resultant lost income. Also, ensure you note any future business opportunities you have lost due to your injuries.

These may be lost projects due to turning down a regular client, or because you cannot perform certain duties anymore.

Get legal advice

To help negate the financial loss incurred by a personal injury, contact KMB Legal today and our personal injury lawyers will help you. We act and provide guidance at no cost. We are your compensation, claim experts.

Lease disputes – When can I change the locks?

Thu, 14 Jan 2021 03:59:03 GMT

Lease disputes – When can I change the locks?

Being a landlord has many advantages, but it also comes with a high degree of stress and responsibility. Dealing with tenants, and especially tenants in default can be a difficult and time-consuming task. And it’s made worse by laws which, on the face of it, often seem to be on the side of tenants at the expense of landlords.

Such laws were put in place to protect tenants from rogue landlords, but if the other party decides to make life difficult the process of removing them from the property can be challenging. It’s not as simple as changing the locks. Proper legal advice and processes have to be followed to prevent legal issues and retaliatory court action from certain circumstances by the tenant.

So in this blog, we are going to cover the proper legal advice and process for dealing with lease disputes. We’ll discuss how to manage lease disputes, the early termination of leases, and how and when to issue a Notice to Remedy Breach. This should help keep landlords on the right side of the law when dealing with tenants in default.

What does the law say about lease disputes?

In the state of Queensland, before a landlord can terminate the lease and retake premises they must first serve the tenant with an appropriate form, " Notice to Remedy Breach " (Form 11 of Queensland government).

This obligation is set out in the Property Law Act 1974 (Qld) which stipulates that the notice must provide details of why the leases are in default and what steps the tenant must take to remedy the situation.

Furthermore, the tenant must be afforded a “reasonable amount of time” after being served the notice to bring the premises lease back into good standing.

If a landlord attempts to gain access to the property without following these steps they are in default of the Property Law Act 1974 . In such a scenario the tenant could then apply to the court for compensation.

The type of compensation tenants can claim includes:

1. Reclaiming court costs

2. The return of any other expenses incurred

3. Damages and compensation for breach of contract

The tenant can also apply for an injunction to restrain any such breach of contract in the future. Which will make it even more difficult to gain legal access to the property.

What is considered a “reasonable amount of time” within which to respond to a statutory notice?

The law is deliberately ambiguous in this area because each case should be considered on its own merits. But for guidance, we can look at how the courts have ruled on previous cases to get an idea of what is considered a “reasonable amount of time”.

Primary RE Limited v Great Southern Property Holdings Limited.

The case between Primary RE Limited v Great Southern Property Holdings Limited. [2011] VSC 242 . This complicated case involved a managed investment scheme that included forestry assets in various states across Australia and Tasmania. The tenant commercial leasing land for forestry management activities before subleasing it to several growers.

During the financial crisis of 2008, several of the tenants' growers went into liquidation which left the tenant unable to fulfil its obligations under the lease. The landlord Great Southern Property Holdings Limited was then forced to serve a breach notice to the tenant across several states.

The breach notice stipulated that the tenant had failed to resolve disputes and manage the plantation crop by following sound silvicultural and environmental practices; fertilise and harvest the plantation crop; spray herbicide and insecticide where appropriate; conduct weed control and remediate land erosion.

The breach notices were then followed approximately one month later by termination notices.

The tenant challenged the validity of the termination notices claiming that they failed to allow a “reasonable amount of time” for them to remedy the issues raised in the breach notice. They claimed that to remedy the issues raised and bring the plantations back into good standing would take more than a year.

How did the court rule?

The court ruled that one month was more than enough time for the tenant to respond to the breach notice. The purpose of the breach notice is to give time for the small business tenant to consider its position and provide a meaningful response. It did not require the tenant to rectify the issues raised.

The court deemed that a sufficient response to the breach notice would have been:

For the tenant to recommence management of the plantations in compliance with the lease terms.

Offer a proposal to pay compensation for any damage caused to the plantation.

Communicate a genuine intention to complete the above proposals.

The court also noted that the time required to remediate the breach is not the critical point. The following guidance was put forward as to what factors should be considered to determine reasonable time:

The purpose for which the notice is given

The nature of the breach

What is required to be done to avoid forfeiture?

To clear up any further confusion, the court also said that the breach notice should not leave the tenant speculating about what action it should take and (by when) to prevent the lease from being terminated.

Lessons for landlords about leases and dispute resolution

What is considered a reasonable amount of time to respond to a breach notice, and what is considered a reasonable response, will depend on the circumstances of each case?

In the above case, the court ruled that one month was more than enough time for the tenants to respond to issues brought up in the notice. The time needed to rectify the issues raised was not relevant in this case. Instead, the commercial tenants should have communicated what they intended to do to bring the lease back into good standing.

So when issuing breach notches landlords should be clear about:

Why the breach notice is being issued.
The precise nature of the issues involved.
What the tenant must do to avoid forfeiture
What is considered an adequate response to the issues raised in the breach notice and when it is reasonable to expect it.

Seek legal advice

Failure to provide any of the above may result in your breach or subsequent termination notice being challenged in court. While the challenge of legal rights may not prove to be successful, the other party defending such a case could prove to be expensive. If you would like more information about managing leasing dispute resolution, seek legal advice talk with our commercial lawyers today.

[Landlords] Lease incentive clawbacks deemed unlawful in Australia

Thu, 17 Dec 2020 01:03:26 GMT

Back in October 2019, the Victorian Civil & Administrative Tribunal (VCAT) made a decision which casts doubt about the validity of lease clawback clauses. The Tribunal which seeks to resolve disputes between parties cited an earlier decision by the Queensland Supreme Court in its reasoning.

The earlier Queensland Supreme Court ruling was at the time thought to be an anomaly since the case contained many unique features which would not apply to other cases. But the latest VCAT ruling sets a precedent which questions the validity of landlord lease clawbacks. Especially those which punitively impact tenants.

What are incentive clawback clauses?

Incentive Clawbacks are incentive clauses where the initial "incentive" is paid to a tenant to lease a premises and are re-payed to the landlord in the case of early termination.

Where incentive clawbacks are usually found within commercial lease agreements. But other examples can be found in insurance companies, large organisations and even within the federal government.

Landlord’s often use lease incentive clawback provisions in the lease agreement in an attempt to ‘clawback’ fit-out costs and other incentives used to sign-up new tenants. Such incentives vary but examples include contributions to fit-out costs, a rent-free period during fit-out (rental abatement) or a reduction in rental costs until space has been fully utilised.

Clawback incentive are offered on the condition that tenants are required to repay the incentive (or a proportion of the incentive) should the lease be terminated early. The rationale behind such contracts is that the incentive was offered in exchange for the tenant covenant to occupy the property during the lease term.

By failing to complete the lease term the tenant has failed to fulfil his part of the contract. They should therefore be forced to repay all or part of the incentive as compensation. However, the recent VCAT decision now casts doubt on such contracts making it very difficult for landlords to claim back lease incentives in the future.

Queensland Supreme Court says clawbacks amount to a penalty

The original judgement was set during a 2014 case between GWC Property Group Pty Ltd and Higginson & Ors .

GWC Property Group Pty Ltd V Higginson & Ors: Key Takeaways

The case centred around an incentive clawback clause which was written into the lease agreement which stated that the tenant (Higginson & Ors) would have to repay all or part of the landlord's fit-out contribution. This clause would be enacted if lease is terminated for any reason other than the landlord's default.

Such a case should have been straight forward. However, in its judgement, The Queensland Supreme Court deemed this particular clawback clause to be excessive, effectively amounting to a penalty. Such a clause was therefore not enforceable and the court ruled in the tenants’ favour.

In summary of the case, the court stated that it had applied a relevant test to ascertain whether the incentive clawback clause was deemed to be “extravagant and unconscionable” in amount and out of all proportion compared to the loss suffered by the landlord (GWC Property Group Pty Ltd).

Following the judgement, the court stressed that granting such incentives to the landlord would have put them at a great advantage. The impugned clauses would have in effect allowed them to profit from the deal and put them in a stronger position than if the lease had run its course.

The court did acknowledge, however, that the landlord could claim for the cost of reinstating the premises back to their original condition. And for the loss of rental income until the property had been re-let to a new tenant. But the rent-free period negotiated with the tenant was deemed to be the price the landlord paid to secure the deal.

Victoria refuses landlords rights to clawback incentives

Fast forward to October 2019 and the validity of a similar clawback clause was considered by senior members of VCAT.

The case was brought between Finetea Pty Ltd and Block Arcade Melbourne Pty Ltd. As part of an incentive to secure the lease, the landlord (Finetea Pty Ltd) had agreed to a rent-free period and a cash contribution to the tenant's fit out costs (Block Arcade Melbourne Pty Ltd).

A clawback clause was subsequently written into the lease contract which required the tenant to repay a proportion of the incentive in the case of early termination of the lease. After the venture failed the landlord claimed for a rent credit of $335,000 and contribution to the fit-out costs of $200,000.

During its assessment of the case, VCAT members utilised the same “extravagant and unconscionable” test used in Queensland. After the test was applied the tribunal ruled in favour of the tenant and refused to allow the landlord to claim back any incentives used to secure the lease.

In summary, VCAT Member R Walker said; “The Landlord now seeks an order that, in addition to those damages, it should receive back the value of these incentives. That is “extravagant and unconscionable in amount” and out of all proportion to the damage it has suffered. To allow such a claim would be to enforce a penalty.”

In applying the ruling the VCAT Tribunal members further stressed that allowing the landlord to claim back incentives would result in a double recovery thereby unfairly punishing the tenant.

What does this mean for landlords?

While the above cases do not constitute a change in the law, they do create uncertainty about the validity of such clawback clauses. In future, it would suggest that such clauses will be very difficult to endure through the courts and be unenforceable.

While the original GWC Property Group Pty Ltd vs Higginson & Ors case was initially seen as an anomaly. The VCAT ruling sets a precedent which waters down that argument. At the very least courts will seek to use the same test to ascertain whether the level of damages sought is extravagant and unconscionable.

Such rulings also make it more likely that tenants will challenge the validity of clawback clauses in future. This is especially pertinent at the moment as retailers across the country struggle to recover from the economic turmoil caused by the Coronavirus (COVID-19).

Landlords should therefore carefully consider the commercial implications of any incentives offered to tenants in an effort to secure a lease. Because, the recovery of any payments or incentives which were otherwise not payable if the lease took its term are unlikely to be viewed favourably by the courts.

In other words, by adding lease incentive provisions to a commercial lease agreement, the landlord would not guarantee the financial reimbursement of the provided incentive in the case where the tenant needs early termination.

How to add safely add clawback provisions to your commercial lease agreement?

Since incentive clawback are likely unenforceable in court it's even more important to seek professional advice on the provisions you would like to add in case the tenant does breach the lease agreement.

Contact KMB Legal to ensure your clawback provisions are within the law's definition of fair and not excessive, but still doesn't leave you in a less than favourable financial situation.

To learn more about lease incentive clawbacks, please book a free consultation with KMB Legal so you know what your legal rights are as a commercial property owner.

Your entitlements in a motor vehicle accident travelling to work

Sun, 13 Dec 2020 23:53:58 GMT

Your entitlements in a motor vehicle accident travelling to work

Have you sustained injuries in a motor vehicle accident, or a car accident on the way to work? If so, you may be eligible to receive through your employer’s Workers’ Compensation insurer. For most Queensland employers, this workers' compensation insurer is WorkCover Queensland. If you are not at fault in the car accident, you may also be entitled to a compensation claim through the at-fault vehicle driver’s Compulsory Third Party (CTP) insurer.

What’s Involved in Making a Compensation Claim with WorkCover Queensland?

Unlike other insurers, WorkCover Queensland does not operate under an at-fault-based system. So, when you lodge a statutory claim, you do not have to show that you were at fault.

If you can show that you are employed in Queensland, and you had a car accident on the way to work, you may be entitled to a workers' compensation claim including:

• Replaced normal gross wages or weekly benefits (commensurate to your lost wages if injuries sustained)

• Covering of medical and rehabilitation treatment

• Travel expenses covered

• Pharmaceutical expenses covered

• Vocational assistance, and;

• A statutory lump sum payment

You must lodge your workers' compensation claim with WorkCover Queensland no later than six months after the injury sustained or has occurred. If you fail to meet this deadline, you must provide a reasonable excuse for the delay. Having said that, workers compensation insurer WorkCover Queensland is generally quite strict in regard to the six-month limitation period.

What Constitutes a Workers Compensation Journey Claim?

A journey claim comes under quite a wide umbrella. The reason being, a journey claim is not limited to motor vehicle accidents. You may receive an injury while you are walking or riding to work, for instance. Under Queensland law, the journey claim would also be considered.

The workers' compensation legislation also covers any work-related travel you are required to take. That is journeys to other destinations you are expected or required to attend, according to the terms of your employment.

Can the Journey Claim for Workers` Compensation be Denied?

Under certain circumstances, yes. Journey claims may be rejected in the following cases:

• There is a significant delay in receiving the claim workers compensation, without reasonable cause, or;

• A deviation or interruption to your regular journey (i.e. traveling to a restaurant on the way home from work, etc.)

Is There a Possibility of Appealing?

If you should be dissatisfied with the decision, it can possibly go up for appeal. However, this is not always the case. Your prospects of appealing a decision in which a claim is rejected due to journey interruption or deviation, or substantial delay in submitting the application, is left up the WorkCover Queensland.

The likelihood of a successful appeal depends greatly on individual circumstances. These include factors such as the reason, distance, and length of time of the application delay, journey deviation, or interruption.

Can I Make a Common Law Claim?

Under certain circumstances, lodging a Common Law claim may be advised. Have you been injured in a road accident as a direct result of another road user’s negligence? If so, you are also entitled to pursue a common law damages claim compensation against the at-fault driver’s CTP insurer. Common law damages include the following:

• Claim Compensation for pain and suffering (how much compensation?)

• Covering of medical expenses for the injured worker

• Covering of pharmaceutical expenses

• Relevant travel expenses

• Rehabilitation treatment (funded by the CTP insurer upon claims process)

• Losses in past and future income

• Past and future superannuation benefits

• Domestic assistance and care, given by family members and friends

• Paid domestic assistance and care, delivered by service providers

• Covering relevant future medical treatment, and;

• Retaining costs

Is There a Lodgement Date?

Yes, there is. Your common law claim must be submitted to the at-fault driver’s CTP insurer no later than nine months of the date of the accident, or no more than one month of your first consultation with a personal injury lawyer regarding the claim.

What if the Driver Didn’t Have Insurance and we had a car accident on the way to work?

If the motor vehicle accident travelling to work was caused by an unidentified or uninsured driver, you have to lodge a claim against the Nominal Defendant no later than three months or one month following your consultation with a personal injury lawyer.

What Happens if a Workers Compensation Claims is Late?

As the time limits are strict, there are consequences for failing to lodge the claim on time. If your claim is lodged outside of the aforementioned time limits, you have to provide a reasonable excuse for the delay.

Please be advised, there is also a non-negotiable time limit of three years to commence any court proceedings.

Which Entitlements Should I Pursue If I get into a motor vehicle accident?

In some cases, you may be able to claim both statutory entitlements through WorkCover Queensland, as well as common law damages against the other driver’s CTP insurer. In order to be eligible for this, you have to meet certain criteria. To claim, you must have been injured in a motor vehicle accident that occurs between your home and your place of employment.

Should I Pursue Both Entitlements?

Yes. Provided you meet the eligibility criteria, you certainly should. That said, navigating your way through the insurance schemes relevant to your situation can be complicated. Unsurprisingly, there is no blanket approach to ascertaining the correct approach to follow.

Furthermore, the two insurance schemes can often conflict. Medical evidence gathered for one claim can have an adverse effect on the other claim. Therefore, it is essential to seek expert legal advice in regard to your rights and options when considering which compensation entitlements are appropriate for you. At KMB Legal, our team specialises in compensation claims for car accidents, or motor vehicle accidents. If the accident occurs between your home and your place of employment, we will help you through the entire claim process.

Can You Assist me in Making the Claim?

Yes, we certainly can. At KMB Legal, we believe you should not have to navigate a complex insurance claim on your own. That’s why our professional team is ready to guide you through the entire process. We will advise you and walk you through every step of the way.

Have you sustained injuries in a motor vehicle accident between your home and workplace? If so, look no further than KMB Legal. We are your motor vehicle, claim experts. Get In Touch Today

What is a motor vehicle injury and who can claim?

Wed, 25 Nov 2020 02:43:24 GMT

What is a motor vehicle injury and who can make the claim?

As the name implies, a motor vehicle injury can be experienced in any type of vehicle, including a bus, bike, car, motorcycle, truck, train, or any motorbike accident.

Have you sustained an injury in a motor vehicle accident due to another person's negligence? KMB Legal's lawyers can help you obtain all the compensation and damages you're legally entitled to. Contact us for help if you're:

• An injured people by a vehicle

• A cyclist injured person by a vehicle in a road accident

• Injured while driving

• Injured as a passenger

• Injured while in a motor vehicle accident involving livestock

• Injured while using public transport

• Injured in a motor

If you can correctly establish the "at-fault" vehicle, you can make a claim against the Compulsory Third Party (CTP) insurer of the said vehicle. In Queensland, all drivers are obligated to have CTP insurance. As such, all drivers are liable for personal injury claims made by fellow road users.

If the "at-fault" vehicle can't be identified, is not registered, or is not covered by CTP insurance claims policy, you can claim as a Nominal Defendant against the State Government. However, strict time limits apply to this, so ensure you call a police officer or consult a lawyer immediately. If you were partially "at fault", you are still eligible to claim a somewhat reduced amount of compensation.

We advise you to consult a lawyer before signing documentation or responding to an offer from the other party. If not, you may forfeit your right to claim compensation, so contact KMB Legal immediately following your injury claim.

What constitutes motor vehicle accident claims?

If you incurred an injury due to a motor vehicle accident (i.e. a car, truck, motorbike, train, lorry, boat, or any other motor vehicle) and it was caused by another person or you're only partially responsible, you have the right to claim. This is referred to as a motor accident claim. As it's compulsory for all registered vehicles in Queensland to have CTP insurance commission, the claim proceeds against the CTP insurer of the "at-fault" vehicle.

As previously mentioned, however, if the accident is caused by an unidentified vehicle (aka a "hit-and-run" or the vehicle is unregistered), the claim is made against the government insurer (Nominal Defendant).

How does the motor vehicle claim process work?

The claim is made against the compulsory third party insurance (CTP) insurer of the "at-fault" car accidents. In Queensland, all vehicle owners are obliged to have a compulsory third-party (CTP) insurance policy attached to their vehicle's registration. In cases when the "at-fault" vehicle involved is not registered, a purpose-built government body - known as the Nominal Defendant - stands in the place of the third party insurer.

What are the associated time limits?

To meet these guidelines, you must lodge your insurance claim within nine months of the accident date, or within one month of consulting a lawyer with legal fees. If you don't do so, you can still lodge a claim, however, you need a plausible reason for the delay. In addition, if you fail to commence court proceedings within three years of the date of the accident, you permanently forfeit your right to claim.

It's important to keep in mind that if you can't identify the "at-fault" vehicle, you should contact the KMB Legal team immediately. If a car can't be identified, or its registration has lapsed, you only have three months from the date of the accident to lodge all associated claim forms.

What can I claim for?

You are allowed to claim for the following items:

• Past income loss

• Future loss of income

• Out of pocket expenses (i.e. medical expenses, medication, surgery, physiotherapy, chiropractic treatment, and hospitalization)

• Pain and suffering

• Any essential assistance or care you have needed or will need in the future.

After lodging your claim form and we've been informed by the insurance company that they are liable for the accident that happened, we can secure the necessary funding for rehabilitation costs from them. This will result in less financial strain for you at a time when your financial pressures are already significant.

Am I eligible to claim after motor vehicle accidents?

Provided you can prove you are not at fault or the accident was partially your fault, you are eligible to claim damages. You may also claim for damages under the following circumstances:

• If you were a passenger either in a car accident or on a motorcycle.

• If you were a pedestrian or were on a bicycle and were hit by a car accident, motorcycle, truck, or another registered motor vehicle.

• If you were either a driver or passenger and the motor vehicle crash or car crash was a result of a defect in your vehicle.

As you can see, there are many circumstances under which you can lodge a claim. However, it's vital that you call or email us for an initial consultation, during which we will discuss your rights.

How much will I receive from my insurance company?

The overall worth (i.e. quantum) of your claim is dependent on how the motor accident, car crash, or accident has affected your life, and most importantly, your capacity to work. If the impact on your life was minimal and you recover from your motor vehicle injuries quickly, then your claim will likely be modest. However, if your injuries severely impact your ability to perform your job, or require you to change employment, your claim will be much more significant.

Of course, there are a variety of factors that influence the final settlement you receive. The reason being, there are many "heads of damage" you can claim for. The team at KMB Legal are injury insurance claim experts, so we can adequately apprise you of all possible avenues for obtaining workers' compensation. This is why we consider obtaining legal advice essential.

What happens next?

You should make an appointment with us as soon as possible. It's essential to speak to a lawyer before signing any documents from the other party or their insurer. If not, this can impact your right to claim. As time limits apply to motor vehicle accidents claim, you should speak to our personal injury lawyers right after the car crash, or accident scene. They can inform you of your rights and the claims process.

Seek legal advice

By law, you're entitled to receive damages for fatal injuries caused by the other driver or another person fails. For further information, contact KMB Legal today for legal services in Western Australia, your car accident lawyers. Get our contact details for a free consultation regarding your legal rights.

The majority of claims are covered by our no win, no fee policy legal costs. Put simply, you only need to pay our professional fees if the judgment is made in your favor.

How social media affects compensation claims

Thu, 19 Nov 2020 23:20:51 GMT

How social media affects compensation claims

Facebook posts or any social media posts are just as much a normal part of the average person’s day as a cup of coffee in the morning, with thousands of people's everyday life logging into social media account or social media pages, and apps before they’ve even gotten out of bed in the morning.

In fact, social media posts are such a widespread phenomenon that it’s also become a staple within the law firm and courtroom too. Social media compensation claim contents and posts have been directly used by the personal injury lawyer to hire surveillance evidence of a legal matter, legal advice, legal cases, legal rights, including Super/TBD and workers compensation claims.

So, when it comes to social media posts, and other social media content, how much is too much? Or when do you have to avoid posting a work accident? When it comes to advising clients on what they should or shouldn’t be posting about on their feeds, it’s always better to err on the side of caution.

That potentially damage, social media usage can have a direct impact or can cast doubt on the outcome of a slip or fall, workers compensation claim payout, CTP, and even Super / TPD claim. Even posts that seem completely innocent to the untrained eye can potentially affect, or have a knock-on effect that you wouldn’t expect.

Why do social media compensation claims matter?

One of the best example of why social media matters are the case of Digby v The Compass Institute Inc & Anor [2015] QSC 308 . In this relatively recent case, it was established that insurers don’t need to inform the plaintiff when it comes to the use of all social media data.That includes just about anything you post on Facebook records, Instagram, or TikTok, as well as countless other social platforms. This means that evidence could be being gathered without your knowledge, and without the knowledge of your client.

Because of this precedent, the recommendation for any client who is active in the social media world is to step back and take a break or avoid posting anything at the moment. But if your client can’t or won’t go cold turkey – whether for work or personal reasons – there are still some steps you can take to safeguard their online presence and ensure they aren’t undermining how much compensation claimed they get. Some of which may be perfectly obvious, and others that are far less pronounced than you’d expect.

What should clients not post on social media about personal injury claims?

For clients that can’t part with social media permanently, or simply want to still be active online, certain considerations must be made during the time their compensation claim is active.

Social media can be a powerful form of evidence in many modern claims, and this should be stressed alongside providing guidance on what clients should and shouldn’t post about themselves online.

While this is not an exhaustive list, here are some of the major areas to consider when it comes to what your clients should not be posting online:

Evidence of strenuous activity that is out of line with their personal injury claim

Whether it’s doing the backstroke at the local pool, skiing down a mountain, lifting their kids, or certain activities with any photographic evidence of strenuous activity – both visual and verbal evidence– even a single photo on social media that goes against your client’s claim is valuable evidence and can cause damage that can’t be fixed. If your client’s pending compensation payout claim relates to a personal injury compensation claim or pain that prevents activities, it’s vitally important that compensation law and personal injury compensation claim, or compensation payout doesn’t contradict that statement in the public eye.

Contradictory to medical negligence information

Compensation claim relating to medical conditions and pain, or any online contradictions claim depends on a serious problem. Think of someone that needs their arm in a sling for a proven track record of eight weeks appearing at a family law or family member party without one, or someone who needs a neck brace taking pictures without it soon after a motor vehicle accident, or other accident.

Admitting fault or liability to personal injury law

Whether you’re sending content on Instagram Stories or posting to Snapchat, social media is never 100% private. That means a compensation lawyer or personal injury lawyer and client should not make any statements regarding blame and contradictions in possible liability, and in everything they say. If possible, personal injury lawyers should not refer to the incident at all in any way, shape, or form.

Narratives or information on the compensation claim legal processes

Taking to social media friends post about – or complaint about – your lose legal professional privilege, or seeking compensation claim. As with admitting liability, not talking about legal representation processes at all is the best course of action on social media when going through an active claim.

The client's current location or locations where they will be

Professional standards legislation advice is twofold. Not only can location makes information allow insurers to track down your client location thru later date on social media accounts, but where they feel natural at that current moment, it can contradict their personal injury claim. Especially if they have said to their compensation lawyer, or compensation lawyers that they cannot travel for long periods of time, or they cannot leave their home as a result of permanent disability, less disability, or other psychological hardship.

Frequency and quality of content

Hundreds of Stories a day or professional-grade content can suggest that a client claim is perhaps less severe than they are suggesting. This is especially true where social media is a full-time job or part-time line of work for the client if they have claimed an inability to work. Existing pre-created footage or campaigns should be stated as such, and you may want to warn your client they may be used as evidence.

Content and posting that differs from their emotional state

It can be tempting to put on a positive face on social media, but this can be risky for a client who just had an accident, it may have scheme-approved claims based on emotional content, psychological harm, especially surrounding anxiety or depression. Own posts, where they appear carefree or happy post, may appear to contradict their claims, no matter how fake a smile is.

What is the best thing to do when it comes to social media posts?

Without evidence, insurers don’t have anything to use against you. Our advice would always be to tell the client to abstain from social media friends where it is possible, or avoid social media damaging – and warn them of what can happen if they continue to post or make content that contradicts their compensation claim. Unfortunately, posts your clients may think of as innocent can easily be twisted or looked at in different ways to pick apart an otherwise strong claim to the other party.

In addition, request permission to client to stay off social media (though of course they can scroll and view others’ content if they like), you may want to consider extending that ban to friends and family members. The less your client is on social media in any form, the less that can be said. It can be tempting to gossip or talk about accidents or psychological injuries, but keeping all those details offline can help to strengthen your case – and prevent any social-media-related cracks from appearing.

Performing due diligence when purchasing a business

Thu, 12 Nov 2020 02:13:54 GMT

Performing due diligence for buying a business

The due diligence process for buying a business is extremely exciting and can open a world of financial possibilities. However, it also takes a lot of work; particularly regarding its internal operations (i.e. structure, established business model, intellectual property, target market, and more) before signing the business sales contract.

Due diligence process explained

Put simply, the due diligence period is the process of conducting thorough research into the business you plan to own. This ensures you understand the risks associated with company ownership. There are some important factors to keep in mind when performing due diligence to ensure you make the right decision.

How the existing established business is structured

The most common business structures include sole proprietorship, partnership, and limited liability corporation (LLC). The type you choose will depend largely on the type of business you're purchasing. In addition, the structure you choose directly impacts your business and tax obligations. Most importantly, the structure also determines the sales process you and the owner must follow.

Prior to purchasing, it's vital to know the business structure, so you know exactly what to expect. For instance, you may purchase half of a partnership. Or, you may be buying shares in a liability limited publicly-traded company or even part-ownership of an LLC. Understanding how these business types operate will ensure a smooth transition.

What is the existing business' history?

Another important aspect of due diligence investigation is understanding the business' history. While researching the company, you will need to find out information such as:

How long has the business been in operating in professional standards legislation and legal proceedings?
How many key employees did the business have?
What is the employee benefits tax returns or employment contracts?
How many owners has the business had?
Who is its current owner? And;
Does the business have any financial due diligence clause or outstanding liabilities and is litigation pending?
What are the key assets, asset ownership, or business suitability?
How does the business perform?
Are there any similar businesses competing?

Failing to check may result in inheriting unwanted legal issues. So, remember to ask professional advice regarding the current owner for all accounts payable and receivable, income statements, and profit and loss statements. Also ensure you enquire about all utility accounts, current business loans, and other lines of credit.

Research existing contracts on intellectual property

Any existing business you purchase will have current valid contracts, binding contract, or supply contracts (i.e. with suppliers, technicians, freelance contractors, and others). Part of your due diligence in finding out whether these contracts will be transferred to you upon sale depending on how much money it cost. Once the sale is complete, all of these contracts are your responsibility. So, it is crucial to understand the details of each, as well as your rights and obligations before signing the contract of sale. It's very important to understand your obligations toward each existing client. The key reason for this is the profit you generate from them will keep the business running.

Who are the business' current employees?

Regular business operations must continue uninterrupted during the sale and transfer of the business you are buying. This is especially important if the company has current employees who you intend to keep on the payroll. If you plan to do this, get confirmation from the seller that the retention of current employees is part of the contract. If this is the case, ensure you understand employee rights and obligations, as stipulated in their contracts. This information will prove quite useful if you ever need to perform a business restructure and eliminate redundancy. It's also handy should you ever need to lessen your employee numbers (i.e. due to a decline in sales or falling profits, etc.).

What current lease arrangements are in place?

When researching a potential business purchase, your last act of due diligence is perhaps the most important. It is imperative that you understand whether there are current lease arrangements for the business premises. As part of most sales contracts, lease agreements are usually transferred via a deed of assignment to the new owner. After the sales process is complete, you must understand the terms of the lease on your building, office, or warehouse.

Generally speaking, existing leases do not have a stipulation allowing for term changes, even after ownership is transferred to a new party. So, before agreeing to the purchase terms, make sure you review all existing lease terms carefully. And, only if you are satisfied with these terms should you continue the transfer of ownership process.

Are there any warning signs to look out for?

The simple answer is: "yes". However, identifying these warning signs is now much easier thanks to thorough due diligence. Conducting due diligence will help you evaluate the risks and merits associated with the type of business you plan to buy. This process will require plenty of time and patience on your part. Yet, carefully reviewing all the pros and cons will ensure you make the right decision for you.

In spite of this careful study, there are some clear warning signs which will show you that a registered business name is not worth your time or money. We advise you to think twice if the seller does any of the following:

They do not disclose the exact reason they are selling their registered business
They are not forthright in providing you with: a valid business license and permit, any existing distribution agreements, client agreements, and lease agreements, and current key documents copy of income and profit and loss statements
Decline to provide you with information about their contractors, suppliers, and estate agent
Are currently involved in court proceedings
Have a questionable credit record history or questionable purchase price, or;
They persuade you to immediately deal quickly before giving you any of the above information.

It is important to note that this information should be freely given to any potential buyer. You should not have to ask the seller to provide it; it is part of their obligation.

Checklist for the business due diligence process

Performing due diligence and looking for any of the above warning signs is absolutely essential. However, the Queensland Government provides an added layer of protection through its comprehensive due diligence checklist for aspiring business buyers.

Some of the checklist features include tax and legal matters (i.e. physical assets valuation, government requirements, and stamp duty), financial statements, and sales information (including balance sheets, bank statements, and business records).

Other features include industry and business due diligence operation details (including seller training, procedure manuals, and industry deregulation) and business assets (i.e. cash, stock, and equipment). For the complete Due Diligence Checklist visit: ( business.qld.gov.au/due-diligence-checklist ).

Are you ready to take the plunge into business ownership? If so, contact KMB Legal today for comprehensive advice.

7 Essential Tips for Successfully Purchasing Commercial Property

Wed, 04 Nov 2020 05:06:25 GMT

7 Essential Tips for Successfully Purchasing Commercial Property

An advantageous property purchase can absolutely transform the success of your business. Equally, a poorly considered or inadequately researched transaction can result in a costly disaster. Unfortunately, even experienced business owners can end up making a dodgy purchase if they don't get the right professional assistance.

KMB Legal offers a complete conveyancing service for industrial property, commercial properties, commercial investment, and retail property, ensuring that all appropriate checks and procedures are completed prior to purchase. Using our extensive experience, we've put together seven considerations to take into account when planning to buy commercial properties.

Use professionals to draw up contracts on the commercial property market rent and commercial property investment

If you've previously bought an office building, own business, then office space, or residential property, you may feel that putting together a contract for a commercial real estate property purchase is going to be no more complex than residential conveyancing. Unfortunately, retail space is not the case. Buying Commercial property investment frequently requires detailed, complicated investment property contracts.

In particular, the "Special Conditions" (the customized part of the contract that deals with the minutiae of your specific purchase) need to be drafted with care and comprehensive knowledge of the commercial investment. It is actually illegal for a commercial agents or some other unqualified professional to draft complex market factors to the commercial property owners.

Use a professional legal team to work on your contract in order for it to accurately reflect every aspect of the sale, minimizing the risk of unpleasant surprises further down the line.

Residential property and commercial properties search matter!

Buying commercial property involves a series of searches that need to be completed in order to get a clear picture of any outstanding debt, population growth locations, rental income, or challenging circumstances that relate to the property. Buying a commercial property outstands land tax depreciation schedule. For example, buying commercial property will be transferred to you, the new owner if it's still outstanding at the point of purchase.

Searches are also needed to check for potential threats and hazards (for example, searches can help to quantify the risk of subsidence or flooding). Making sure that all the appropriate searches for commercial demand are carried out needs to form part of the conditions included in the contract. Searches provide the vital information needed to make a sensible purchasing decision on residential properties.

The greater the number of searches that are carried out, the easier it is to have an accurate understanding of the pros and cons of your chosen property.

Going concerns and Goods and Services Tax (GST).

If a commercial property isn't sold as a "going concern", the seller will be liable for GST. If both vendor and purchaser agree that the property is a "going concern" (a business that is fully operational and turning a profit), it may be possible to avoid GST being paid on the transaction.

For this to happen, both parties needed to be registered for GST, and a lease needs to form part of the sale transaction. Note that you may be challenged on the validity of the "going concern" justification for not paying GST by ATO.

To minimize the risk of a subsequent GST clawback by ATO, we suggest making sure that appropriate safeguards are inserted into the contract, and also obtaining professional advice on whether your proposed purchase is likely to qualify as a "going concern".

Do you know who your buyer is?

Although it may seem obvious which organization is interested in purchasing your commercial property for infrastructure development. It is vital to be completely clear on the property management options when buying a vastly different commercial proposition.

Although the difference between a trust, a limited company, or a partnership may appear negligible in terms of their interest in the property you've got on commercial sales, the reality is that there are growing consumer demand and differences in the way these entities operate when it comes to:

legal constraints
lease terms, and leasing arrangements
retail sector
rental income
taxation
economic factors;
and stamp duty.

Entering into a contract with an organization without being fully conversant with the way in which it operates could leave you severely out-of-pocket. Why risk it? If in doubt, always use a legal professional to establish the nature of your purchaser.

They will also be able to put in place suitable safeguards in the contract to prevent any financial kickbacks later on.

What does your lease state?

If the commercial premises you're considering buying (or selling) has a lease attached to them, it's important to be clear on how this will affect the commercial premises, when a change of ownership is being considered. Leaseholders have a considerable number of rights enshrined in law.

Depending on the leasing agreement, the existing tenant may legally have the right to be asked first if they want to purchase commercial property before it's put on the general residential market rent. They may also be a "fait accompli" when the property ownership is transferred.

Lease arrangements are notoriously complex, which is why it's crucial that all parties are clear on how a lease affects the sale.

Capital Gains Tax Benefits

Capital Gains Tax (CGT) is a perennial headache for commercial property buyers. At its most basic, CGT is calculated by subtracting the sale price from the original purchase price, plus upkeep expenses for the duration of the property ownership.

Different entities pay varying amounts of CGT. Given the significant sums that may be involved, we strongly suggest using professional accounting services to calculate the potential for CGT, as well as to come up with strategies that could keep CGT payment to a minimum.

Goods and Service Tax (GST)

It's not an urban myth that a purchaser presumed that the cost of a commercial property was inclusive of GST, whilst the vendor believed the purchase price to exclude GST! After a protracted court case, it was agreed that the property was, in fact, sold exclusive of GST.

This meant that the buyer was responsible not only for paying for the property but for the (not insignificant) GST bill as well! Don't let this be you. The clarity in the terms of the property transfer contract is absolutely essential if costly errors like this are going to be avoided.

KMB Legal has seasoned legal professionals on hand to take you through every stage of the commercial property-purchase process. Get in touch now to find out more about the benefits that legal counsel and representation can bring, or to tell us more about your intended commercial property purchase.

Your Step By Step Guide to Buying a Business

Tue, 27 Oct 2020 23:58:41 GMT

Your Step By Step Guide to Buying a Business

Buying a business is an exciting prospect. It enables you to be your own boss and experience financial freedom. And, when purchasing an existing business, you'll benefit from an established business client base, experienced staff, and relationships with suppliers. Yet even with these systems in place, people often neglect the legal aspects of business ownership.

Consequences of inadequate preparation

If you jump into established business ownership too quickly, you may encounter some nasty surprises. For instance, the previous owner may alter the contract terms without notice. Or worse, after buying the business, you may discover hidden debt. This financial burden can lower or eliminate your projected profits entirely. To avoid this, here are five crucial points to consider when buying a business in Queensland.

Step 1: Setting out key terms on intellectual property

Prior to entering into any own business agreement, we recommend clearly outlining the key terms by which you and the other party will abide. Ahead of the agreement is a document that outlines key terms both the seller and prospective purchaser require in the contract of sale. For instance, heads of agreement may include the settlement date, deposit amount, when it is to be paid and the overall purchase price, and conditions, like finance and the transfer of the lease.

However, unlike a formal contract of sale, it is a non-binding document. As such, a disclaimer is included which states that the heads of agreement are not binding until each party goes through with the sale of the business broker contract. A key advantage of the heads of agreement contract is it significantly reduces your legal expenses.

It is also very helpful to negotiate the terms of this contract in advance with the business seller. By doing so, it is much easier for your lawyer to draft a final sale of a business contract.

Step 2: Undertake due diligence on established business

This is a crucial step when purchasing a Queensland-owned small business. Put simply, due diligence refers to thoroughly examining all business documents, profit margins, existing customers, existing employees, equipment, business's assets, business's customers, and the premises themselves.

When performing due diligence, you ensure all records, Australian credit licence, financial situation, registrations, tax implications, tax obligations, and permits are current and future demand, study business plans, and operations, examine the company's financial statements, lease agreements, and intellectual property. If you're a prospective buyer, we recommend studying the industry landscape, its competitors, and marketplace dynamics.

Conducting this research enables you to understand the business operations after you've signed the contract but before the final purchase. We recommend looking into the following: the lease, council and development approvals, employment and 3rd party agreements (i.e. supplier agreements), and business finances. If you discover a problem, due diligence allows you to walk away from the sale.

It's also advantageous to check for specific council requirements. Particularly, whether you're permitted to run the business outside its premises. Queensland leases require you to investigate if the premises can be used to operate your business.

Step 3: Reading your own business contract carefully

An aspiring business owner runs into trouble because they have not read the contract properly. They mistakenly believe they're signing a "standard contract"; however, these contracts don't sufficiently protect the rights of buyers or sellers. Before signing any document, ensure you consult with a solicitor. Studying the contractual terms, your solicitor ensures it covers the essential elements of purchase and/or sale. These include:

Transferring the suitable business name, lease, along with other vital business assets, licenses, and permits
Current stock prices, and any fittings and fixtures which are part of the sale
Including relevant warranties and representations regarding the business' sales key performance indicators
Appropriate security measures covering each party's performance of their contractual obligations
Goodwill. This refers to a figure placed on any intangible business advantages the business has gained thus far. Such advantages can include reputation and connections within the business community. These qualities separate the value of the new business from an existing company. Also, if all current customers do not patronize the business brokers after the sale, clawbacks and retentions are included. And;
A reasonable restraint of trade is placed on the vendor to minimise the threat of direct competition from neighbouring businesses.

Step 4: Transfer your lease from existing business

Many business purchases require you to take on a lease. So, it's crucial to ensure the landlord will sign a said lease over to you. One of the most common types of lease types is retail. Before the landlord can give you consent, the requirements set out in the "The Retail Shop Leases Act 1994 (Qld)" must be followed. According to the Act, the landlord, assignor (seller), and assignee (buyer) must adhere to disclosure requirements.

As such, the assignor and assignee have to provide separate disclosure statements at least seven days before attaining the landlord's consent. The landlord is expected to give the assignee a disclosure statement, along with a lease agreement, seven days before giving their consent. Along with these requirements, the assignee must also:

Sign a joint statement with their lawyer, which acknowledges that the assignee attained legal advice regarding the lease, and;
Sign a similar document with their accountant, acknowledging they received sound financial advice.

Step 5: Legal expenses relating to the business

In the excitement of taking over a business, many people forget about the myriad of associated costs and legal requirements. The good news is, you do not have to navigate this minefield alone. The KMB Legal team is highly experienced in all facets of buying, selling, or establishing a new business. Consulting our team early on in the process will prevent future problems which may arise while you're operating the business or attempting to sell it.

To ensure you are prepared, your solicitor can advise you on such business law issues as:

Local and state government expenses
Fees associated with your established brand and trademark registration
Licensing and permit expenses, and;
The transfer of duty fees involved in buying an existing business

Are you ready to escape the 9 to 5 grind and be your own boss? We have a team of Business & Commercial Lawyers here to help you. Our focus is to help you to make the purchase process as smooth as possible. Contact us today.

Protect Your Best Interests with a Property Caveat

Thu, 22 Oct 2020 23:17:31 GMT

Protect Your Best Interests with a Property Caveat

The demise of a long-term relationship can be one of the most stressful things you will experience. Unsurprisingly, caveatable interest can leave you utterly distressed and grief-stricken. Add your current legal obligations to these swirling emotions, and the complex, yet essential division of your assets can seem an impossible task. Fortunately, the legal advice of the experts at KMB Legal is ready to help you with all property land act and law matters.

Whether you have been married or in a de facto relationship, most partners have a scheme-approved caveatable interest in a property they have shared. Despite this, your name may not appear in the property information office title. There are several reasons for this. These include:

* If your spouse bought the property in question prior to your relationship, and;

* Your spouse may have inherited the property from a relative; or

* You and your spouse may have agreed to register the property in one debtor's property name based on advice from your financial advisor.

One of the options available to protect your caveatable interest in the property is to lodge a caveat.

What if my name does not appear on the legal or equitable interest title?

As mentioned previously, your name might not be on the property title. In this case, you should rectify the situation immediately if you believe your former spouse intends to deal with the property before your property settlement is finalized.

If not, your former spouse is entitled to make decisions about the property without your consent. Fortunately, a legal caveat gives you a voice in the property’s future. It enables you to protect your caveatable interest if your former spouse elects to sell, transfer shares to another party or use the property as equity to obtain a loan agreement.

How exactly does a scheme-approved caveat protect me?

Simply lodge a caveat, a property caveat is a legal notice, addressed to your state or territory's Registrar of Titles. By lodging, this document, the caveator (you) safeguards their caveatable interests in said property. In practical terms, when the caveat is recorded on the property title, its registered owner is forbidden from selling or making other arrangements (i.e. loan agreement, selling, transferring, further encumbering, etc.) with the property, until and unless the caveat is removed.

From the date of lodgment, lodge a caveat remains on the property's title for three months. Throughout this period, you are legally obliged to commence court proceedings and advise the Registrar of Titles that these proceedings are taking place.

If you fail to do so, your caveat will no longer be valid and will lapse. The registered proprietor will then be able to deal with the property without your consent.

What should potential buyers know about a caveat?

In Latin, the word "caveat" literally translates as: "let him beware". As such, when on a property title, it should serve as a red flag to any potential buyer. By conducting a simple title search via the title registry, they will discover that someone else is interested in the property they wish to protect.

How do I know if I have a caveatable interest?

While on the surface it may seem simple, this is quite a complex legal question. Therefore, we strongly advise you to discuss your needs and concerns with the professional standards legislation at KMB Legal.

Firstly, to register a caveat on your property, you must establish a "caveatable interest". And, contrary to popular belief, the proprietary interest is not established by default if you have been married or in a de facto relationship.

However, in family matters like this, you can establish a caveatable interest in the property in other ways. The most common is by demonstrating the "financial and non-financial contributions" you have made to the "acquisition, improvement, and maintenance" of the household throughout the relationship.

During the relationship, you may have contributed by making mortgage payments, for instance. Or, you may have contributed to the property in non-financial ways, or in a reasonable cause. These can include: carrying out housework, undertaking renovations, or making improvements to the property. And, if your name is absent from the title, these contributions will not be reflected within it, however may still give rise to an equitable interest in the property law.

When should I seek legal advice?

When arranging property caveats, we have seen cases in which significant non-financial contributions are sufficient to give rise to caveatable interest. This includes tasks such as caring for your children. As there are substantial risks involved in lodging a caveat, we advise you to seek legal counsel.

At KMB Legal, we will walk you through the entire process. We will advise you on the best course of action to protect your legal rights. If you do have a caveatable interest in your property, our team will prepare all the necessary documentation for you, and ensure you provide your unregistered interest in the property and explained it in detail.

Are there risks in lodging a caveat? If so, what are they?

Registering a caveat is not without risk. For instance, it may be discovered that the person lodging the caveat has no caveatable interest in the property. As a result of the action, the property's legal owner may suffer substantial financial loss. If this is the case, the owner is legally permitted to recoup those losses from the person who initiated the action.

It's also important that you are aware the legal owner can pursue certain legal avenues in response to the caveatable interest. If they do not wish to wait three months for the court proceedings, they are legally entitled to compel you to initiate proceedings within a fortnight. In addition, the owner may also exercise their right to apply to the Supreme Court to remove the caveatable interest.

How can a caveat be removed?

There are various ways a caveatable interests may be removed from a property title. These include:

* It is withdrawn by the purchaser's interest who lodged it;

* If the caveat lapses, due to court proceedings not commencing within the specified timeframe;

* The Supreme Court orders the caveat to be removed, or;

* The Registrar cancels the caveat

Are you currently going through a divorce or separation? If so, professional standards legislation may have concerns over the sale of the property without your consent. However, you can prevent this. To lodge a caveat, simply call or email the skilled KMB Legal team today .

The Divorce Process in Australia - Divorce Questions Answered

Tue, 13 Oct 2020 02:02:21 GMT

How to get a Divorce - Divorce Questions Australia

In this article we will answer your most common questions about the divorce process in Australia and explain the 5 step process in how to get a divorce.

The divorce process in Australia is not what you think.

Let me explain.

Many people looking to get a divorce believe it includes formal separation, property rights and parenting duties. Actually, divorce is the most straightforward aspect of the separation. It’s entirely separate from resolving financial issues, child support and dividing property.

Common Reasons for Divorce in Australia

While every divorce is unique to each relationship, in Australia there have been some more frequent reasons people apply for a divorce.

The Australian Divorce Transition Project asked people “What would you say was the main reason for your marriage ending? And here are the key results from their findings:

27.3% said “Communication Problems”
21.0% said “Incompatibility / ‘drifted apart’”
20.1% said “Your or former spouse had an affair”
14.8% was because of “Abusive Behaviours”
12.7% was because of “External pressures” like financial problems, work, mental health or family interference
3.9% was for other reasons.

Note: It should be noted that in Australia you don’t need a specific reason to apply for a Divorce. The only grounds for a Divorce in Australia is that there are irreconcilable differences between you and your partner which is made clear by at least 12 months’ separation. In Australia we operate under the “no-fault divorce” act established in the Family Law Act 1975 .

How The Divorce Process Works in Australia

Being granted a divorce merely means the parties are no longer legally married. Chiefly an administrative process, either one or both parties must apply to the Family Court to obtain a divorce order. Please note, depending on your personal circumstances, you may be required to attend a short hearing.

The divorce order also incurs other important consequences in Family Law. The most important of which are spousal maintenance and property settlement. Additionally, it also triggers a statutory time limit to apply to the Family Court for spousal maintenance or property orders.

How to get a divorce in Australia: 5 Step Process

Step 1: Prepare your divorce papers

The first step of the process is to prepare your Application for Divorce document. You can either choose to file a joint application (you mutually agree) or a sole application where only you need to sign the application.

Do I need a lawyer to file for a divorce?

You can hire a private lawyer to prepare your divorce application and be your advocate during the divorce process, they will help you submit your divorce application and guide you through the legal steps leading up to the Divorce order from the Family Court.

A good private lawyer can provide legal assistance to your exact circumstances.

But you can also submit the application yourself, read the full guide on the Federal Circuit Court of Australia website.

Step 2: Sign your divorce papers

Once your divorce application is correctly prepared you will need to sign the document in front of a qualified witness. In Australia, the best thing to do is look up where your local Justice of the Peace is available to be a witness. If you are doing a joint application, this document needs to be signed by both parties.

Step 3: File your divorce application to the Family Court

Once the Divorce papers are filled and signed by a qualified witness, you’ll need to gather other supporting documentation like your marriage certificate.

Once you have done that you can submit your application at your local Family Court electronically by registering with the Commonwealth Courts Law Portal .

There is a divorce filing fee payable at the time of filing. You may be eligible for a fee reduction under certain circumstances.

Step 4: Receive the sealed documents & serve spouse documents (if needed)

Once you submit your Divorce application and the fee has been paid, the Court will begin to process your application and you will also be assigned a Court hearing date. As a part of the “processing” of the documents the Court will officially stamp the original document, which can be accessed through the Commonwealth Law Courts PortalThese stamped documents are called “sealed” documents.

The Court files away the original sealed application for records. In the case of a joint application, one of the sealed photocopies are sent to you and the other is sent to your spouse. In the case of a sole application, you will have to arrange to “serve” a sealed copy to your spouse (soon to be ex-spouse).

You will need to “serve” (deliver) the document to the other party at least 28 days before the court hearing date, unless your spouse is overseas. In that case, you need to serve your spouse 42 days before the court hearing date. There are specific court rules and forms required by the court for the “serving” of sealed divorce papers.

We recommend using a registered process server (also known as a service agent) to deliver the document to the other party. Otherwise, any person over the age of 18 years can personally serve the documents. You are not able to serve the documents yourself.

You must then file documents proving service upon your spouse. Divorce service kits can be found on the Family Courts website .

Step 5: Attend the court hearing

After the divorce application has been processed by the Family Court, you will receive a Court Hearing date. When you attend the Court Hearing, assuming all the required information is supplied, the Court will issue a Divorce order which will be in effect one month and one day from the hearing date.

It should be noted though, that there are circumstances where you are not required to attend the Court hearing. But you must attend the court hearing specifically if you filed a sole divorce application or there are kids under 18 involved. There are also other circumstances where you must attend so make sure you are aware of your obligations about attending the Court hearing .

Divorce Frequently Asked Questions (FAQ) in Australia

How to submit a divorce application in Australia?

There are a number of ways to submit a Divorce application in Australia.

A private lawyer can help you fill out the application and submit it for you.
You can also download and print off the application if you intend to do-it-yourself.
You can also apply online through the Commonwealth Courts Portal, read this full guide .

Check out the full step by step Australian Divorce process above.

Divorce in Australia, who gets what?

This is a common misconception. Division of physical & financial property doesn’t happen during the Divorce process in Australia. After or before the divorce process is official you can apply for spousal maintenance and/or a property/financial order.

It is generally advisable to do so before the divorce to ensure you do not miss the time limit of 12 months to apply for property orders if negotiations fail.

It should be noted though, that time limits apply for matrimonial property settlement. You have only 12 months from the date of your Divorce to settle your property matters or apply to the Family Law Courts for orders. De facto couples have two years from the date of separation to do the same. To ensure you don't miss the time limit, you should obtain legal advice without delay.

Spousal Maintenance

But who gets what? In the case of Spousal Maintenance, the amount of financial support depends on what the main income producing party can afford.

Property Order

In the case of a property order, division of assets is usually based on an agreement between the two parties or after a court hearing. A property order can also be used for de-facto relationships maintenance.

This can be a complex topic, but the court takes into account:

The value of all the property of both parties
Assess the contributions of the parties (not just financially, but non-financial contributions such as caring for children or other responsibilities is also considered)
Assess the needs of each party
Identifies a just and equitable division

A 50/50 split that most of us assume is not actually common. It can take months to get all the information required for the court to make a fair and just decision.

If one of the parties is a business owner or part business owner the value of their share of the business will be considered as a part of the asset pool and a heavily negotiable item in the property settlement as there are many factors to consider. In this situation it is highly advised that you seek legal and financial advice.

How much does a divorce cost in Australia?

Submitting a Divorce application to the Family Courts does have a fee associated with it. Check out the exact figure under point 5 on the official how do I apply for a divorce guide. If you decide to also seek legal advice there will also be costs associated with the independent lawyer you choose.

Can divorce be denied?

The only reason a divorce can be rejected is if there was a procedural error or mishap in the application process. For example, there was something that was filled out incorrectly, or there was information that was not disclosed. Or perhaps the sealed divorce order was not “served” correctly. A divorce can also be denied due to jurisdictional issues - ie if the both parties are not Australian residents or it has not been 12 months and 1 day since separation.

To avoid your Divorce getting denied ensure you contact a divorce lawyer who can guide you through the process.

Does it matter who files the divorce application?

There are two types of divorce applications:

Joint application where both parties sign and have a mutual agreement
Sole application , where only one party signs

In the case of a sole application, the spouse who initiates the divorce process will control how fast the proceedings move and will be responsible for paying the divorce fee upon submission. They will also be responsible for legally serving the sealed divorce order documents to the other party using a process server.

How long do you have to be married before you can file an application for divorce?

In Australia, you have to be married for at least 2 years before you can apply for a divorce. See the question below on what to do if you have been married for less than 2 years.

What should you do if you’ve been married for under two years?

If you’ve been married two years or less, you must undergo compulsory mediation, provided by a Family Court-approved child and family mediator. The purpose is to discuss a possible reconciliation. Then, with a certificate issued by the counsellor, you can file an application.

However, if you or your spouse cannot attend counselling, you must outline the reasons in an affidavit, submitted with the application. If you’re close to the two-year threshold with no mitigating circumstances, we recommend waiting for the deadline to expire.

How long do you have to be separated for?

In Australia, you have to be able to show that you have been separated from your spouse for 12 months and 1 day. Ideally you would be living in different locations and have not spent social time with each other to be considered separated in that time. The Court will look at the evidence to decide.

What if we’re separated but living under the same roof?

You can cohabitate, but you must prove the marital relationship is completely broken down. This will generally involve providing Affidavits to the Court setting out the evidence proving that you and your spouse have been separated but living under the same roof.

This can get a bit more complicated as the Court will have to look at quite a few factors for you to be considered separated for 12 months. The things they will look at include:

Financial Arrangements like who is providing financial support, tax reporting, sharing a bank account or not etc.
Household living arrangements (sharing a bedroom, who does the chores, do you socialise with each other)
Intimate Relations
Other social aspects, like do you still present as a couple in public, have you told your family etc.
Evidence from a third party that the marriage is over

Note: This is not an exhaustive list.

In this situation it’s important to seek legal advice so you can safely identify if you can be considered separated for the adequate period of time.

How to get a divorce if you don’t have a marriage certificate?

It is Australian law to submit your application with your marriage certificate, however there are some individual circumstances where that might not be possible. For example, if you were married overseas or lost your marriage certificate. In this situation you’ll need to submit a “Affidavit in Lieu of Marriage Certificate”. Which is a formal statement which demonstrates to the Court that your marriage is valid. You will need to show in the Affidavit that you have done your best to find a replacement and that your marriage is valid under Australian law. Read more here .

If you were married overseas and your Marriage Certificate is not in English, you will need to have your Marriage Certificate translated by a certified translator service.

How long does divorce take?

Generally speaking, it takes approximately four months from the filing of a Divorce Order for it to be finalised. A divorce is generally finalised one month and one day after it is granted Once your divorce is finalised you can print a digital divorce order from the Commonwealth Courts Portal on the next working day.If planning to remarry, or you can’t locate your former spouse, allow more time for it to go through.

What are valid grounds / reasons for divorce in Australia?

The only reasonable grounds for divorce in Australia are irreconcilable differences, made clear by at least 12 months’ separation.

For a successful application, you must:

Prove the marriage is irretrievably broken (i.e. through a minimum 12 months’ separation)
Have been married for at least two years, or undertaken necessary counselling in the Family Court

However, if you and your partner have reconciled for three months or more, the 12-month separation period starts again.

Can either party oppose the divorce?

In some rare cases, a party can oppose a divorce. The key reasons are: disputing whether the date of separation meets the 12-month requirement or divorce proceedings may be underway overseas or that the Court does not have jurisdiction.

Failure to agree on property settlement or parenting arrangements isn’t grounds for divorce. If your partner opposes the divorce, they must file a response application. This must be served to you or your lawyer before the hearing.

What should I do if I can’t locate my spouse to serve the application?

In this case, you can still apply to the Court. However, you must prove you have endeavoured to locate your spouse. Should their address not be found, you can file an Application for Substituted Service. This application can then be served by alternative means, such as on a family member or by , by is served to a family member of your spouse on their behalf. If successful, the Court allows documents to be served to said family member via electronic means (i.e. email or Facebook).

Keep in mind, the extra legal work involved increases your costs and delays the final Divorce Order.

What impact will the divorce have on my children?

Children’s arrangements are finalised prior to the actual divorce. If your children are under 18, the Court must ensure sufficient provisions have been made for their welfare. This doesn’t mean parents can’t argue over parenting arrangements. It simply means the children’s physical and emotional wellbeing is maintained.

Parties often attend mediation to determine post-separation parenting arrangements. This is a mandatory step before initiating parenting proceedings in the Family Court. Parents can enter a Parenting Plan to document their agreement, or select a legally binding option like an Application for Consent Orders.

Whilst parenting matters are separate from divorce, the Court required parenting arrangement information (including their education, health and care) as part of the Divorce Application. Even if some aspects are being contested, the Judicial Officer must be satisfied at the Divorce Hearing that appropriate arrangements are in place before the divorce order.

If I was married overseas, can I get a divorce in Australia?

Provided they have the jurisdiction to hear the Application, the Family Court can dissolve overseas marriages. The Court may do so if you are:

An Australian citizen (by birth, descent or grant), a permanent resident, or;
Consider Australia as your home and intend to stay indefinitely

Upon meeting these conditions, you can apply for a divorce in Australia, if you have a copy of your overseas marriage certificate. If the copy of your marriage certificate is in a foreign language, it must be translated and this translation filed with the Divorce Application.

Should I apply for divorce jointly?

Yes, as these are quicker and more cost-effective. A joint application incurs no service fees, and if you have children under 18, they are dealt with in chambers. This means lawyers don’t need to attend the divorce hearing and legal fees are reduced.

How does divorce impact my property rights?

As already mentioned, a divorce does not determine your property entitlements. The reason being, property settlement is much more complex than a divorce application. The only connection between them is your property settlement has to be filed within 12 months of your divorce finalisation. It is therefore advisable to commence property settlement negotiations prior to applying for divorce. Parenting arrangements can be finalised at any stage after separation.

What impact does divorce have on my will?

Upon divorce, any gift left to your spouse becomes invalid. Therefore, both parties should make separate wills to reflect your wishes. We also recommend removing your spouse as beneficiary to your superannuation and life insurance benefits. If you haven’t updated your will since separation, we recommend obtaining Will and Estate Planning advice.

Perhaps also note that a Power of Attorney is automatically revoked upon Divorce.

Summary

In summary, divorce is simply the final step in dissolving your marriage and doesn’t involve the division of assets, that comes after the official Divorce Order. To ensure your application is successfully filed and accepted by the Family Court, get in touch with KMB Legal today , we can provide a friendly face to help through the whole process.

Rent Relief for Commercial Leases in Queensland during COVID-19: What you need to know

Tue, 06 Oct 2020 00:31:04 GMT

Rent Relief for Commercial Leases in Queensland during COVID-19: What you need to know

For many businesses, the current COVID-19 situation has led to a reduction in revenue – directly impacting their ability to cover vital bills for their business. In Queensland, rent relief has been included as part of ongoing COVID-19 regulations, providing a way for companies to stay afloat in a challenging time.

We provide all the information you need to understand current emergency regulations in Queensland regarding retail leases and commercial leases during the COVID-19 crisis. Read on to find out more about what these regulations mean, what rent relief consists of, and what landlords can and cannot currently do:

What is rent relief?

As the name suggests, land tax relief or rent waivers is a process in which retail and commercial lease tenants can ask to reduce or waive rent from a landlord. This may include deferred payments, an overall reduction of rent for a period, or waiving a certain amount of rent based on the decrease in turnover a business has experienced due to COVID-19. Under Queensland’s emergency COVID-19 regulations, rent relief is designed to protect companies that would otherwise fail due to the pandemic.

What are the regulations for commercial leases during covid 19?

Current emergency regulations for commercial lease won’t apply to every business or premises. To be included within these regulations, businesses will have to meet one of the following requirements:

• The retail and commercial tenants are classified as SME, making a turnover below $50 million

• The commercial tenant is eligible for the current JobKeeper scheme

• The commercial tenant falls under additional exceptions, such as the Land leased Act or farming-based businesses

For any of the above businesses affected by the current global situation, it may be possible to request rent relief from commercial leasing. In this case, a decline in turnover does not include any assistance that businesses have received thanks to NSW government help or grants during COVID-19.

In the case of franchised businesses, where the lease is between a franchisor and a franchisee where the franchisee meets the above requirements, this will be an affected lease. In turn, the lease between the franchisor and landowner will also be an affected lease within this chain.

Finally, for related tenants – where tenants are affiliated or where several different locations trade under a single name – the turnover of the business will be aggregate. This means all tenancies are considered together to determine eligibility.

How long will the regulations last?

The period for commercial tenants considering rent payable relief was originally from 29th March 2020 through to 30th September 2020. This has now been extended to 31st December 2020. This period is referred to as the ‘response period’, and provides ample time for lease disputes to undergo the regulatory resolution process.

What can landlords do if commercial tenants in retail and commercial leases are looking for rent relief?

Retail and commercial leases under current regulations may be concerned that they have no rights regarding their tenants. However, while others offer rent relief, and is considered designed to provide commercial tenants with ways to stay in business and retain their lease, there are certain things that landlords can still do. If a company has not paid their rent for a reason other than COVID-19, they are not covered under emergency regulations – which means the usual process for defaulting on rent must be followed.

In the case that the landlord and tenant arrange for rent relief, and this is not followed, the tenant is not then further protected. Similarly, if a tenant refuses to enter negotiation for rent relief, they are also not covered under Queensland’s emergency COVID-19 regulations.

What are landlords unable to do during this process?

During the response period of the rent relief process, landlords cannot take any ‘prescribed action’ against their commercial tenants that are on an affected lease. This includes businesses that fail to pay rent or outgoings or those that fail to trade. Prescribed action includes enforcing rights, using security deposits, or terminating leases. This only applies during the response period – once an agreement has been reached between the tenant and landlord for rent relief, this no longer applies.

During the response period, landlords can also not increase rent. While rental reviews are allowed, the rental price of the commercial property cannot accrue until after the response period has been completed. It’s worth noting that this only applies to reviews unrelated to business decline in turnover.

How does the rent relief process work?

Both tenants and landlords may instigate the rent relief process. Once negotiations have started, each party must exchange accurate information – allowing for clear and transparent decisions. This information may include the definition of what this specific rent relief will entail, evidence of the tenant’s position as an SME or within the JobKeeper scheme, and information on reduction in annual turnover because of COVID-19.

Once the information has been provided, and negotiations are underway, the landlord then has 30 days in which to make the commercial tenant an offer for a rent reduction. For any rent relief the landlord offers, 50% or more must be waived under current emergency regulations.

Deferred payments may be included as a part of this agreement, where the tenant agrees to pay rent at a later date with no interest or fees. This can be paid off regularly over a 2-3-year period following the response period. The landlord can retain security deposits until all deferred payments have been made.

Landlords must also offer tenants rent concessions such as extensions of term equal to the time in which the tenant requires rent relief. However, if the landlord has already agreed on a new tenant lease or there are other impediments, this may not apply.

You must record the full rent relief agreement in writing. This ensures that everyone understands the facts and has a clear understanding of the leasing principles that have been made for rent relief. If possible, recording the whole agreement process can ensure there are no other issues or confusion in terms of the agreement further down the line.

How is rent relief calculated?

When retail and commercial landlords offer a land tax relief or rent relief agreement to their commercial tenants, this is calculated based on several factors. These include:

• Current rent reduction provided in annual turnover for the tenant

• land tax reduction

• How much the tenant is compromised

• The financial position of the landlord<

• Any savings through land tax attributable, land tax payable rates, and other Australian government support, or NSW government introduced fees

There may be other factors considered in land tax relief or rent relief reductions. However, the decline in turnover of the business itself is always a significant factor in what percentage of rent waiver is offered overall – to ensure fairness to renegotiate rent and reach the best possible outcome.

What happens to pre-existing rent relief agreements?

For tenants and landlords of retail or commercial lease properties that have already made agreements for rent relief, current regulations state they are enforceable. However, any further negotiations must be consistent with existing regulations if they are required.

If you’re unable to agree as a tenant or a landlord during the prescribed period, current regulations require proper dispute mediation carried out by a small business commissioner-appointed mediator. Should this also fail, both parties will then go on to be heard at QCAT for their lease dispute

Duty of Disclosure in Family Law Property Settlements: What You Need to Know

Wed, 23 Sep 2020 02:22:06 GMT

Duty of Disclosure in Family

Law Property Settlements:

What You Need to Know

Financial disclosure is a fundamental part

of a family law property settlement. Both

parties must provide full and frank disclosure

of relevant financial information—and the

obligation continues as the

matter progresses.

By Katie Chan

When a relationship ends, one of the first steps towards resolving a property settlement is understanding the financial position of both parties.

That requires each party to provide relevant information and documents about their financial circumstances.

This obligation is known as the duty of disclosure .

From 10 June 2025, the duty of financial disclosure was expressly incorporated into the Family Law Act 1975. The obligation applies to both married and de facto couples and can arise while parties are preparing for property or financial proceedings, not simply after proceedings have commenced.

What is the duty of disclosure?

In financial and property matters, parties are required to provide full and frank disclosure, in a timely manner , of information and documents relevant to the issues in dispute.

Once proceedings have commenced, the duty is owed both to the Court and to the other party.

Importantly, it is an ongoing obligation . It does not end after an initial exchange of financial documents. If a person's financial circumstances change or further relevant information becomes available, additional disclosure may be required.

When does the duty begin?

You do not necessarily need to be in Court before the duty applies.

The Family Law Act provides for disclosure obligations where separated parties are preparing for proceedings concerning financial or property matters.

If proceedings commence, the duty continues throughout the proceedings until the matter is finalised.

This reflects the practical reality that disclosure is often required well before a Court application is filed so that parties and their lawyers can properly identify the property pool and attempt to negotiate a resolution.

What needs to be disclosed?

The precise disclosure required will depend upon the financial circumstances of the parties and the issues in the matter.

Common documents may include:

bank statements;
taxation returns and notices of assessment;
payslips and other evidence of income;
superannuation statements;
mortgage and loan statements;
credit card and other liability statements;
documents relating to shares and investments;
property valuations or appraisals;
trust documents;
company financial statements and taxation records; and
documents relating to the sale, transfer or disposal of assets.

The Court's Rules also require disclosure of matters extending beyond assets held directly in a person's own name. For example, disclosure can encompass interests in property owned by an entity that a party owns or controls, and income earned by such an entity.

Do companies and trusts need to be disclosed?

They can be particularly important.

A family law property settlement is not limited to looking at the family home and personal bank accounts.

Where a party has interests in a company, trust, partnership or other business structure , relevant financial information about that entity may need to be disclosed.

Depending on the circumstances, this can include company accounts, taxation records, trust deeds, distributions, loan accounts, shareholdings and other documents that assist in understanding the nature and value of the party's interest.

This is particularly important in property settlements involving privately owned businesses or complex corporate and trust structures.

What about assets held with another person?

Disclosure is not limited to assets held solely in your name.

Relevant interests may include jointly owned assets, interests held through companies or trusts and other direct or indirect financial interests.

The Rules expressly contemplate disclosure of vested or contingent interests in property, including certain interests involving entities owned or controlled by a party.

The fact that an asset does not appear on a person's personal bank statement or property title does not necessarily mean it is irrelevant to the family law matter.

Do I need to disclose an asset acquired after separation?

Potentially, yes.

Separation does not itself bring the disclosure obligation to an end.

Property settlements generally require consideration of the parties' financial circumstances at the relevant time, and parties should obtain advice before deciding that an asset, liability, financial resource or change in circumstances does not need to be disclosed.

This is one reason disclosure is an ongoing process rather than a once-off exchange of documents.

What if I don't know the value of an asset?

Disclosure and valuation are different issues.

You may know that an asset exists but disagree about—or simply not know—its value.

For example, a privately owned business may require a formal valuation before its value can be agreed.

The Court's own guidance on preparing a balance sheet recognises that an asset can be identified as having a value “not known” where further disclosure or formal valuation is required.

The important point is not to omit the asset simply because its value has not yet been determined.

What happens if the other party does not provide disclosure?

If disclosure appears incomplete, there are various procedural steps that may be available depending upon the circumstances.

These can include requesting particular documents, seeking further disclosure and, where necessary, applying for Court orders requiring information or documents to be provided.

In some matters it may also be necessary to obtain documents from third parties through the appropriate Court processes.

The appropriate response will depend upon what information is missing and why it matters to the property settlement.

What are the consequences of failing to disclose?

Failing to comply with the duty of disclosure can have serious consequences.

The Family Law Act expressly identifies a range of powers available to the Court. Depending on the circumstances, the Court may:

take the failure into account when determining a property settlement;
make costs orders;
make orders concerning disclosure;
impose sanctions for contravention of an order;
punish contempt; or
stay or dismiss all or part of proceedings.

The Attorney-General's Department also identifies costs consequences and contempt among the potential consequences of non-compliance.

Can a property settlement be finalised without proper disclosure?

This can create significant risk.

Parties need sufficient reliable information about their financial circumstances to make informed decisions about a proposed settlement.

Incomplete disclosure can also affect negotiations and the Court's ability to determine the true financial position of the parties.

Where a proposed settlement involves businesses, trusts, companies or significant investments, careful financial disclosure can be particularly important before final terms are agreed.

Disclosure in complex property settlements

Disclosure often becomes more involved where the property pool includes:

Businesses · Companies · Trusts · Partnerships · Investment structures · Related-party loans · Significant superannuation interests

In these matters, simply obtaining a list of assets may not provide a complete picture.

It may be necessary to examine company financial records, trust structures, distributions, loan accounts, ownership and control, and the relationship between different entities.

Accountants, forensic accountants or valuers may also be required depending upon the complexity of the financial arrangements.

This is an area where KMB Legal's experience across both Family Law and Commercial & Business Law can be particularly valuable.

Has the law about disclosure recently changed?

Yes, although the obligation to provide financial disclosure is not new.

From 10 June 2025 , the duty was elevated from the Court Rules into the Family Law Act 1975. The legislation now expressly sets out the disclosure duty for married and de facto parties.

The Court Rules continue to contain disclosure requirements and procedures.

The reforms also introduced an obligation on legal practitioners and family dispute resolution practitioners to explain the duty and potential consequences of non-compliance and encourage parties to comply.

Getting legal advice about financial disclosure

Proper disclosure is an important foundation for negotiating or determining a family law property settlement.

Understanding exactly what should be disclosed—and identifying when important financial information may be missing—can become particularly significant where a matter involves businesses, companies, trusts or other complex financial structures.

Obtaining advice early can help ensure the financial position is properly identified before negotiations or a proposed settlement progresses.

Speak with a Gold Coast Family Lawyer

KMB Legal assists clients with family law property settlements, including matters involving

businesses, companies, trusts and other complex financial interests.

Our combined experience in Family Law and Commercial & Business Law allows us to approach

complex property matters with an understanding of both the legal and commercial issues involved.

Free 30-minute initial telephone consultation.

BOOK A TELEPHONE CONSULTATION

Debt after separation: what are your rights?

Mon, 14 Sep 2020 22:13:36 GMT

Debt after separation: what are your rights?

For some couples going through matrimonial property settlement time limits proceedings, a concern may be that one (or both) parties are disposing of cases involving lost assets or racking up credit card debt in an attempt to reduce the amount of money or possessions the other individual receives as part of the divorce settlement.

Once a separation has taken place, part of the divorce process involves formal property settlement, drawing up an inventory of all the asset pool of the former partner (whether jointly or individually).

Once this has been achieved, the family court treat assets that need to be divided between the two parties. Ideally, this should be an amicable process, achieved through mediation. Unfortunately, if the case ends up in court, the issue may become an acrimonious one.

After separation, a party may try to deliberately dispose of property assets, matrimonial assets, or income in an unreasonable manner, seeking to deprive the other party of the financial benefit it might bring.

Here we take a look at what types of post-separation expenditure or asset disposal may be seen as unreasonable or wasteful, along with consideration of the relevant case on family law.

What happens if post-separation expenditure or asset disposal is proved to be wasteful?

If it can be proved that the dissipation of the asset pool by one or both parties was deliberate, the financial settlement will be altered to reimburse the wronged party with an appropriate percentage value of the wasted funds.

It's worth noting that whilst one party may suspect that wasteful spending by the other party has taken place, it's quite hard to prove.

There are five main scenarios where willful dissipation of assets or income may be suspected:

Spending on legal fees
Giving away assets for free, or allowing them to be used free-of-charge
Gambling
Reasonable living expense
Selling assets and spending the proceeds

Spending on Legal Advice and Family Court Fees

Generally, legal fees are seen as a reasonable expense, as both parties will usually incur approximately the same level of fees. Where one side has disproportionately higher costs, the judge will consider factors such as:

what the legal costs relate to;
what proportion of the costs were incurred prior to the current divorce proceedings (so was the matter ongoing);
who will be the beneficiaries of a successful conclusion to the matter on which legal fees are being incurred;
and whether the litigation requiring legal expenses may be seen as vexatious.

The judge may take into account the findings from Farrell v Farrell (1996) in determining whether legal costs should be deemed an unreasonable depletion of funds.

Giving away a property settlement for free, or allowing them to be used for no charge

Useful clarification on this issue is provided by the findings from Kowaliw and Kowaliw (1981) FLC 91-092. In this divorce case, the husband allowed an individual who was potentially going to purchase the family home to live in the net property pool, free of rent, for more than a year. The individual was also not required to pay a contribution to cover any living expenses. In addition, the husband's business incurred taxi contributed significant income or losses on-property pool, not all of which appeared to be coincidental to the property settlement time limit.

From the evidence given, it appeared to the judge, that Mr Kowaliw had decided to reduce his income as much as possible following the property acquired post-separation, in a deliberate attempt to reduce the value of property pool assets to be considered as part of the divorce, and property settlement.

Gambling post-separation assets

Although, at first sight, gambling may appear to be a clearly unreasonable waste of assets and income, a judge will take the individual circumstances of the case into account before determining whether assets that have been gambled away have been disposed of with the intention of depriving the other party of funds.

Much of the case in family law used when deliberating on gambling derives from Crampton v Crampton. In this case, the wife admitted gambling away around $100,000. It was later found that this figure was as high as $140,000. The wife's legal team were able to produce evidence that she had suffered from a gambling problem during the course of her married life and had sought treatment for it. Evidence was also produced from medical specialists, who indicated that her gambling addiction was long-term and difficult to treat. Taking these circumstances into account, the judge ruled that her gambling spend wasn't incurred with the aim of depriving her husband of divorce proceeds.

In contrast, in the case of AB & GB (No. 2) [2005] FMCAfam 402, the judge found that the husband had squandered around $80,000 of a $400,000 compensation package on gambling. It was decided that, rather than being the result of an addiction, the gambling had occurred because the husband was deliberately seeking to squander the money so that his wife couldn't get access to it through the divorce settlement.

Reasonably incurred living expenses

As the name suggests, reasonably incurred living expenses will not be judged as being a deliberate dissipation of assets or income. Although there have been various legal cases brought in the past that have contested whether a particular expense is "reasonable", there is a need for considerable evidence before a living expense can be judged "unreasonable".

Selling property pool assets and spending the proceeds

Townsend (1994) 18 Fam LR 505: FC is the case law that is often cited. In this case, the husband sold a taxi, worth $148,000, then spent the proceeds. It was argued that selling the taxi (which was used as a business vehicle to provide income) was premature, and done with the intention of reducing the amount of income available for distribution between the two parties, as well as with a view to reducing the amount of capital available. In this case, $148,000 was transferred from the husband's settlement figure to the wife's.

Conclusion

Deciding whether gambling debts or joint debts incurred after separation should be viewed as reckless and preventable, or reasonable, is a complex matter. Timely legal advice is essential in order to make sure that you end up with what you're entitled to under the Family law. KMB Legal is an established legal firm that can assist with all legal matters pertaining to divorce, including separation, financial matters, child custody and access. Seek legal advice early - Contact us for more information.

Things You May Not Know About Your Offer to Lease

Thu, 27 Aug 2020 01:42:57 GMT

Things You May Not Know About Your Offer to Lease

Tenants beware! Signing an Offer to Lease on a property can result in a binding agreement, even if the parties do not then agree on the terms of the official lease. This blog post will explain why Offers to Lease may result in a binding agreement, and when they don’t result in a binding agreement.

Generally, when a prospective tenant wishes to apply to enter into a lease with a landlord, the landlord or its agent provides a document called an Offer to Lease for the tenant to complete.

This document sets out the particulars and terms of the lease, including any special conditions that are to be included in the lease. Such particulars include, for example, details of the parties, the permitted use of the premises, the term of the lease and any option terms, rental and outgoings, security deposit, rent reviews, and special conditions.

While the Offer to Lease is initially prepared by or on behalf of the landlord, the document represents the offer made by the tenant which is then to be considered by the landlord. A tenant is often required to also pay a deposit when making the Offer to Lease.

Once the Offer to Lease is accepted by the Landlord, the formal lease documents are prepared for execution.

Is an offer to lease legally binding?

Many people do not realize that an Offer to Lease can be construed as a legally binding document. One would need to consider the circumstances surrounding the making of the Offer to Lease to determine whether the Offer constitutes a legally binding contract.

The law identifies four types of situations where negotiating parties reach some form of a preliminary agreement with a view to then finalizing a formal contract, which also applies to an offer to lease pending the formal lease documents:

All terms of the lease are agreed as set out in the Offer to Lease and the parties intend to be bound to by the Offer to Lease and perform to terms of the document but wish to reaffirm the terms in a formal Lease. If this occurs then the Offer to Lease is binding.
All terms in the Offer of Lease have been agreed upon, and the performance of all or part of the agreement is subject to signing the formal lease. If this occurs then the Offer to Lease is also binding.
If the parties do not intend to make a final agreement pursuant to the Offer to Lease, until a formal lease is signed then the Offer to Lease is not binding.
If the parties have agreed on key terms in the Offer to Lease that are to be performed immediately pending negotiation of the remaining terms in a formal lease, then the agreement is binding and replaced by the detailed terms of the formal lease. If the detailed terms of the formal lease cannot be agreed upon, then a court may determine the remaining terms.

It is therefore dependent on the circumstances of each matter as to whether an Offer to Lease is binding. However, generally where the usual elements of a contract are satisfied, Offers to Lease are usually considered to be legally binding.

Accordingly, it is paramount that the parties ensure that all of the provisions within the document are in accordance with the terms of the formal lease document, as the formal lease will be prepared based on the provisions of the Offer to Lease.

The parties should particularly consider the following issues before signing an Offer to Lease:

The proposed use of the premises and whether the premises complies with Council planning laws;
Whether the lease will be a commercial lease or a retail shop lease . This is also particularly relevant when assessing which outgoings the landlord is able to pass on to the tenant under the Retail Shop Leases Act .
The base rent payable;
Rent review process;
The outgoings payable, including what the outgoings are and how such outgoings are calculated;
Whether landlord’s fixtures/fittings are offered with the premises;
Term of the lease and any options;
Security deposit;
The deposit payable upon signing the lease and whether the deposit is deducted from the first month’s rent;
What other costs are associated with the lease, for example, whether the tenant is required to pay the landlord’s legal fees relating to the preparation of the lease and any registration fees (again, this is also dependant upon whether the lease is a retail shop lease);
Any works to be provided by the tenant or landlord prior to the commencement date of the lease;
Any rent-free period or incentives;
Whether there is a demolition or relocation clause in the lease.

The list is not exhaustive and the parties should obtain various advice from experts to determine what matters should be discussed, depending on the use of the premises and the state of the premises itself.

Conclusion

To summarise, signing an Offer to Lease may result in a legally binding agreement. It’s important to understand the different circumstances that may affect whether an Offer to Lease becomes binding or not. If you need any help with leasing a property, please contact our team today.

All You Need To Know About Retail Shop Leases

Thu, 27 Aug 2020 01:39:15 GMT

A retail shop lease is distinguished from a commercial lease. Such leases are governed by the Retail Shop Leases Act (Qld) 1994 (“The Act”). The purpose of the Act is to help balance the rights and obligations between the landlord and tenant.

Under the authority of an Act. The landlord may limit the amount of compensation payable to the tenant in limited circumstances.

What is a Retail Shop Lease?

In Queensland, a lease qualifies as a retail shop lease if:

The tenant business is located in a Retail Shopping Centre; or
The tenant business is used wholly or predominantly for the carrying on as a Retail Business.

Retail Shopping Centre Definition

A Retail Shopping Centre is defined under s5D of the Act as a cluster of premises that have all of the following attributes:

5 or more of the businesses are used wholly or predominantly for carrying on retail businesses; AND
All of the premises:
Owned by 1 person; or
Have 1 lessor or head lessor, or if the premises were leased, would have 1 lessor head lessor; OR
Comprise lots within a single community titles scheme under the Body Corporate and Community Management Act 1997; AND
All the premises are located in:
1 building; or
1 or more buildings if:
The buildings are adjoining; or
If the buildings are owned by 1 person, the buildings are separated by common areas or other areas owned by the owner or road; or
If the premises are not owned by 1 person, the buildings are separated by common areas or a road.
The cluster of premises is promoted or generally regarded, as constituting a shopping centre shopping mall, shopping court, or shopping arcade.

Retail Business Definition

A business that is considered as wholly or predominantly carrying on a retail business is defined under section 5c of the Act, which refers to Schedule 1 of the Retail Shop Leases Regulation 2016 ( Qld ) .

Schedule 1 lists out various types of business that fall within the definition of a retail business. The list is quite extensive and tenants should refer to the Schedule to determine whether their business falls within any of the categories.

Specific exclusions apply pursuant to s5A of the Retail Shop Leases Act

Some exclusions apply pursuant to s5A of the Act whereby some retails businesses are not considered as retail shop leases. These include lease premises which:

have a floor area of more than 1000m2;
are located on a level of a multi-story building, or a standalone build where 25% or less of the total area is retail. For instance, non-retail premises located on a floor of a shopping centre is not a retail shop if 75% of the total lettable area of the floor is used for commercial or professional offices;
are for a vending machine;
are for an advertisement display;
are for a piece of information, entertainment, community, or leisure facility;
are for telecommunication equipment;
are for an automatic teller machine;
are for storage; or
are for parking.

Benefits and Protections for Tenants

The Act provides various benefits and protections to the tenant at a higher level than other commercial leases. Accordingly, it is important that a tenant becomes familiar with the relevant provisions of the legislation.

These benefits and protections include the following:

The landlord is restricted on the proportion of outgoings it can require the tenant to pay;
The landlord cannot charge land tax on to the tenant;
The landlord cannot pass its costs of preparing the lease on to the tenant;
The landlord is restricted on the way rent review mechanisms are carried out.

Disclosure Statement by the Lessor

Further protection provided to the tenant is that the landlord is required to provide a disclosure statement to the prospective tenant prior to the tenant signing the lease.

The Lessor Disclosure Statement must contain information in relation to the prospective lease such as key lease terms, details of the premises, details of outgoings, and other relevant costs associated with the lease.

This statement must be provided at least seven (7) days prior to the tenant entering into the retail shop lease.

If the lessor disclosure statement is incomplete, contains false or misleading information, or is not provided within the above timeframe.

The tenant may give written notice to terminate the lease within six (6) months after the date of the lease.

It is important to note that the tenant may be able to seek compensation for any damages suffered if the tenant enters into a lease based on incomplete, false, or misleading information contained in a lessor disclosure statement.

Other disclosure and reports to be provided under the Act

Under the Act, the tenant is also required to provide the following documents prior to signing the prospective lease to the landlord:

a lessee disclosure statement containing information about the tenant’s business circumstances; and
a legal advice report as well as a financial advice report (the tenant has less than 5 retail leases).

Conclusion

Overall, parties should not enter into retail shop leases without knowledge of the legislative requirements and consequences for failing to comply with

the relevant provisions.

Such provisions cannot be contracted out of and accordingly must be strictly followed. If you need extra support with your retail shop lease, please contact us.

How The Courts Determine a Matrimonial Property Settlement

Mon, 17 Aug 2020 03:41:00 GMT

How The Courts Determine a Matrimonial Property Settlement

Following the breakdown of a relationship , the next step is usually to consider the division of property and assets of the relationship.

The courts require that the parties first try and attempt to reach financial agreements and property settlement by agreement themselves. If the parties cannot reach an agreement , then an application for a property settlement is to be filed in the courts for the court to decide on how the property of the relationship is to be divided. It is important to seek legal advice in relation to making an application, as strict time limits apply in making the application to the courts.

Family law act: The Four-Step Process in the family court

Once a de facto application is made to the family law act, the family court must consider all relevant circumstances of the de facto relationship to determine a fair property settlement. The court follows what is known as a “4-Step” process when determining an application, which is set out below.

It is also important for parties to a property settlement to consider this process when negotiating a property settlement, as even a property settlement by agreement must still be considered fair in accordance with the law.

Step 1 – Identifying and valuing the assets, liabilities and financial resources of the parties

This first step involves identifying and valuing the assets , liabilities and non-financial contributions of the parties . This includes all assets, liabilities and financial resources that either party holds an interest in, regardless of whether they are held solely, jointly or by another entity. It includes assets, liabilities and financial resources held overseas. The property includes assets of either or both parties. This includes almost anything of value such as real estate, shares, motor vehicles, jewelry, funds in bank accounts, superannuation, furniture and personal effects.

If agreement as to the values of the asset cannot be reached between the parties, experts usually need to be retained, such as values or forensic accountants, to value those assets to determine the values.

All assets, liabilities and financial resources of the parties are then referred to as the “property pool”.

Once the value of the property pool is determined, the parties may then proceed to Step 2.

Step 2 – Assessment of the contributions made by the parties

The second step involves the assessment of the contributions made by the parties during a de facto relationship. These include:

Financial contributions to the property pool;
Non-financial contributions to the property pool;
Contributions to the welfare of the family, including contributions in the capacity of the homemaker or parent.

The Court will often form the view that the parties have contributed equally to the property pool in long-term relationships. However, the court may find that some circumstances cause contributions to be other than equal, such as:

Where there are no children and the relationship is a short-term relationship. In these circumstances, the court will generally be more concerned about the direct financial contributions made by each of the parties;
Where one of the parties has made a substantial contribution by way of a family gift, compensation claim or inheritance;
Where one of the parties had assets at the beginning of the relationship that was considerably more than the other party; or
Where the court considers that there was deliberate or reckless conduct of one of the parties that caused a loss to the property pool.

Step 3 – Assessing the future needs of each of the parties

The third step in the family law application involves assessing the future needs of each of the parties. The Court must consider such things as:

Age of the parties;
The health of the parties;
Personal loans;
Personal debts;
parties property interests;
net asset pool;
indirect financial contributions;
All the property. (Property owned, property acquired, property orders, and other property matters);
parties respective contributions;
Future earning capacity of the parties, future financial capacity, or future financial needs;
The property division and financial agreement of each of the parties;
Who has the care of any child of the relationship;
The financial circumstances of any new relationship;
The commitments the parties have to support themselves or another person that they are required to maintain;
The eligibility of either party for a pension.

The court will consider some or all of the fifteen largely prospective factors when deciding whether there should be any adjustment in the division of the property pool in favour of a party to compensate for any difference in their future circumstances.

Step 4 – Is the proposed division of property fair to both parties?

After considering steps 1 to 3 above, the Court must then determine whether the proposed division of the property pool is just and equitable to each of the parties. There is no automatic percentage or outcome when it comes to determining a fair outcome. Each assessment is done by examining the circumstances of each individual case.

It is important for the parties to also seek advice from the outset as to what a just and equitable outcome may look like in their particular circumstance so that the parties enter the proceedings with realistic attitudes and are able to make fully informed decisions which can often lead to the matter resolving before, during a court proceeding, or before the final hearing. This often occurs and can often save costs, time and stress for the parties involved.

Conclusion

It’s important to consider the Four Step process that Courts use to determine a matrimonial proposed property settlement even if you are planning to obtain a settlement agreement before commencing court proceedings. This is because the Court still has the final say on the settlement, and they will use the principles of the Four Step process to determine that the final settlement is fair to both parties. Understanding the Four Step process before commencing property settlements can help align expectations to reasonable outcomes. Always consult a qualified lawyer when working through a property settlement to ensure your best interests are looked after. If you need any assistance at all, our team can help. Contact us today for independent legal advice, professional advice

How To Negotiate A Property Settlement

Mon, 17 Aug 2020 02:36:26 GMT

How To Negotiate Property Settlement

Upon a breakdown of a relationship , the parties need to consider what should happen in relation to the division of any property owned by a former partner, both separately or jointly.

This is referred to as a matrimonial property settlement under the Family Law Act. A matrimonial property settlement under the Family Law Partner Act extends to spouses who are or have been, married and also a former partner, or former spouse who has been in a de facto relationship. De facto relationships also include a relationship between two people of the same sex. This blog will explain the property settlement process as well as guidance on how to negotiate a property settlement.

Attempt an agreement first

The Courts require parties to make a genuine effort to reach a matrimonial property settlement by way of agreement before commencing any court process.

The advantages of reaching an agreement rather than issuing court proceedings are:

Reduced legal cost-benefit analysis from an experienced family lawyer or respective lawyers;
Reduced stress of the litigation process;
Allows the parties to be part of a fair deal decision-making process regarding property division, asset pool, divorce settlement, undisclosed asset, and other full financial disclosure, rather than the Courts imposing the decision on them;
Certainty of the outcome of the property settlement, and other property matters;
Reaching finalisation of succession planning matter in a more scheme approved timely manner, as court proceedings may take several months, if not years to conclude;
Reduces animosity between the parties, particularly where children are involved.

The property settlement process itself can often be difficult, regardless of the circumstances of the relationship or separation. Without adequate preparation, the process can be particularly lengthy, costly and stressful. The greatest error other party can make is to enter the negotiation process without the proper support, seek advice, or legal guidance and understanding of their legal rights.

Seek the right legal advice from a family lawyer

The most secure way to get property negotiations carried out in the most efficient and amicable manner is to obtain professional advice. It is important that parties do not overlook the importance of seeking professional legal and financial advice on any legal matter, particularly where property and assets are involved. There are strict time limits that apply in property settlements as well as various obligations that parties are required to comply with. One party could face detrimental outcomes if they fail in compliance with these obligations and/or time limits.

Disclose everything relevant to the matter

After you have sought legal advice, the next step of the property settlement process is for the parties to be able to identify the assets of the matrimonial property pool. This is achieved by way of financial disclosure.

It is vital that the parties are as transparent in their financial circumstance as possible, as attempting to conceal assets or financial positions will most likely lead to extended litigation in obtaining the disclosure through family court orders.

Rule 13.01 of the Family Law Rules imposes a duty on both parties to disclose all relevant information and states that ‘each party to a case has the duty to provide full and frank disclosure of all information relevant to the proceedings in a timely manner.

The duty to provide all full and frank disclosure means that each party must provide to the other all information relevant to property settlement. This includes things such as income, assets held solely or jointly, bank statements, tax returns and other financial resources as interests in a family trust or a deceased estate yet to be distributed. The list is not exhaustive and depends on the circumstances of each case.

Identify the asset pool

Asset pool and liabilities of the relationship, whether held solely or jointly, fall into what is referred to as the property pool.

Once financial disclosure has been completed, the parties can then determine all assets and liabilities that should be included and determine the total net value of the property pool. In order to accurately evaluate certain assets, the parties may need to also engage valuers, accountants or other financial professionals to assist in providing valuations of those assets.

Dividing the property pool

Once agreement is reached on the assets and liabilities to be included in the property pool and the net value of that pool, negotiations can commence on how the property pool is to be divided.

New Paragraph

What is a Binding Financial Agreement and Should You Sign One?

Thu, 13 Aug 2020 03:59:09 GMT

What is a Binding Financial Agreement and Should You Sign One?

We all know that Family Court proceedings can be a lengthy, costly and emotional process. The Family Law Act gives the Family Courts jurisdiction to determine how property and financial matters may be dealt with upon the breakdown of a marriage or de facto relationship.

Many people wish to avoid the challenging and difficult litigation process by entering into a Binding Financial Agreement. Once parties enter into a legally Binding Financial Agreement (“BFA”), they forego their rights to apply to the Family Law Courts for the determination of their financial and property matters.

This blog post will explain what legally Binding Agreements are and the advantages and disadvantages of BFAs to help give you insight as to whether a Binding Financial Agreement is the right solution for you.

What is a Binding Financial Agreement?

Overall, a Binding Financial Agreement, or BFA, is a private contract between two people setting out how any or all property and financial matters should be dealt with in the event of a breakdown of a marriage or de facto relationship.

A Binding Financial Agreement can be entered into:

before getting married or entering into a de facto relationship;
while married or during a de facto relationship;
during separation but before applying for a divorce; or
after a divorce or breakdown of a de facto relationship.

A Binding Financial Agreements are deemed to be binding if:

The Agreement is signed by both parties;
Before signing the Agreement, each party received independent legal advice about the effect of the Agreement on their rights, as well as the advantages and disadvantages of making the Agreement;
After signing the Agreement, each party is provided with a signed statement by their solicitor confirming that they obtain independent legal advice;
Copies of the signed statements by the two solicitors are exchanged between the parties; and
The Agreement is not terminated or set aside by the Court.

There are circumstances where a Binding Financial Agreement can be set aside by the Court, such as:

There were circumstances of fraud or duress;
There were significant changes to either or both parties’ circumstances which makes it impractical to carry out the Agreement;
A party failed to disclose assets or information relevant to the Agreement;
Since the making of the Agreement, there was a change in circumstances relating to a child which would result in hardship for the child (or their carer) if the Agreement is not set aside);
The Agreement was made for purposes of defeating or defrauding a creditor.

Why enter into a Binding Financial Agreement?

You may wish to enter into a binding financial agreement as you enter a serious relationship in circumstances where:

You have more money, property, or assets than your partner;
You may, at a later stage, expect to be entitled to a large gift or inheritance that you wish to retain;
You operate a family business or investment that you need to preserve;
You have children from a previous relationship who need to be protected financially.

Advantage and Disadvantages

There are many advantages of entering into a Binding Financial Agreement, including:

You have certainty in the outcome of your property settlement and financial matters in the event of a relationship breakdown;
You have the flexibility to determine your own property settlement;
You can secure assets, such as assets you held at the commencement of the relationship, and assets acquired during the relationship;
You can avoid the cost, time, emotion, and risk of litigation where the outcome of your property and financial matters lies in the hands of the Family Law Court;
The Agreement can assist in Estate Planning and tax relief.

There are also disadvantages in entering into a Binding Financial Agreement, which includes.

What may seem like a fair division of the assets at the time of drafting the Binding Financial Agreements, possible contingencies may arise that were not considered which could render an unfair outcome for one of the parties;
Engaging two separate lawyers or legal practitioners can be an expensive process;
The family law surrounding a BFA is complex and therefore if one party sought to set a BFA side, there is uncertainty about how the Court would deal with the Agreement.

Summary

The breakdown of a relationship is a very difficult time for all those involved. The emotional and financial stress of a court battle can no doubt cause even more distress in already challenging circumstances.

Couples often consider making Binding Financial Agreements in advance to avoid a hard situation becoming even harder.

A Binding Financial Agreements can be a cost-effective way to protect the assets you have worked so hard for and also to protect your financial future, as well as the future of your children.

It is also important to remember that Binding Financial Agreements are complex contracts that require specialised family law act advice.

Binding Financial Agreements must be specifically tailored to your individual circumstances, based on insight and strategic advice by the solicitor drafting and/or advising on the Agreement.

Failing to have adequate advice and/or drafting of the Agreement can often lead to Binding Financial Agreements being set aside by the Court.

Independent Legal Advice

At KMB Legal, we have experience in advising and drafting all aspects of Binding Financial Agreements. We believe your own unique circumstance provides the foundation of the Binding Financial Agreements.

We take no “cookie-cutter” approach when drafting the document and/or providing advice to ensure you get an outcome that is just right for you.

Our team of Family Lawyers are here to guide you toward the best solution for your circumstances.