Not sure if you need to speak to a Lawyer, a Solicitor, or an Attorney? And what’s the difference anyway?
Allow us to set the record straight.
In Australia, the term ‘lawyer’ is a generic term to describe any person who is admitted to practice law by the Law Society of that State or Territory. ‘Admitted’ means that you have applied to the Supreme Court and met all the requirements to be a lawyer.
‘Solicitor’ and ‘Barrister’ are terms used to describe what type of lawyer a person is. A solicitor is someone who interacts with clients and has the day-to- day carriage of legal matters. Solicitors can and do appear in court. However, depending on the type of legal matter, a barrister may be required.
Barristers are generally used in more complex court matters such as serious criminal charges or civil matters involving large sums of money or complicated legal issues. A barrister will usually do the major court appearances, including the final hearing and they usually wear a wig and gown.
For example, Dennis Denuto (circa the Castle 1997) is a solicitor. He is also a lawyer.
Lawrence Hammill (also the Castle) is a barrister. He is also a lawyer.
What about an Attorney?
Attorney is an American term for a lawyer. In Australia, an attorney is not a lawyer, rather, it is the person you authorise to handle your affairs under a Power of Attorney. Quite different.
And a Partner, Special Counsel, Associate?
These are all terms used within the legal profession internally to distinguish between the seniority of lawyers.
Paralegal and Clerk?
Are not qualified lawyers, but assist with legal tasks (and are generally invaluable to any law firm).
At Chamberlains we have a team of clever and friendly solicitors (with a great vibe), and we work with some of the best barristers in the country. If you have any legal questions feel free to call for an obligation-free chat today.
If you run your own business there’s no doubt you are flat out with the day-to-day demands of the business; dealing with suppliers, managing employees and trying to find time to spend with family.
You probably think you don’t have time to sit down and conduct a review of your business.
But the truth is, you can’t afford not to.
As the end of the financial year approaches it’s the perfect time for a legal check-up to plan for the success of the coming year.
What does a legal check-up involve?
Like your annual check-up with your doctor, a legal check-up will detect any underlying problems with your business and take preventative measures to minimise the risk of future unexpected hardships.
Consider the following issues:
Chamberlains can assist you with drafting:
If you care for the health of your business, contact our experienced and professional team of corporate and commercial lawyers today to make an appointment for your legal check-up.
We all know that a bank can secure a loan by registering a mortgage over land. But what if you are a small business owner who has leased out valuable equipment or advanced stock to another company? Can you take measures to protect your interests to ensure you are not left out of pocket? The answer is yes you can, and you should, and Chamberlains can help you.
In 2012 the Personal Properties Securities Act (“PPS Act”) established a new system for the creation, priority and enforcement of security interests in personal property, which is generally all property other than land.
The Personal Properties Securities Register (“PPSR”) protects businesses that sell on terms such as retention of title or consignment, or the hiring, renting or leasing out of valuable goods, machinery, vehicles and equipment. It allows you to protect goods you have supplied to someone for which you have not yet been paid. For example, equipment or appliances you have provided to a builder, alcohol presented to restaurants or agisting cattle on another property can all be protected by way of a PPSR.
If any of these scenarios sound familiar, you need to act promptly to secure your interest. To become a secured creditor, like a bank, you need to have a written agreement, and this requires to be registered in accordance with the PPSR. Old “retention of title” clauses in your terms and conditions of supply will no longer protect you.
Should your customer become insolvent, the PPSR works on a ‘first come, first served’ basis. If someone has registered an interest before you, they will get paid first. However, for your interest to be effective against a liquidator, it must be registered within 20 business days of the transaction under which the security interest was created.
We acted in a matter where a business owner supplied alcohol to restaurants with payment to be made at a later date. One of the restaurants went into liquidation and the alcohol supplier, relying on their terms and conditions of supply, asked for their alcohol or its value to be returned. In this case, because the alcohol supplier had not registered their interest, the liquidator was able to retain and sell the alcohol, and the alcohol supplier only received $0.02 in the substantial suffering losses.
If you sell or supply goods and are looking to secure your interest on the PPSR, Chamberlains can assist. We can also assist you in drafting your terms and conditions of supply so that they create the relevant security interest, and we offer training services to you and your staff on PPSR registration. Contact our Property Law team today.
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You could be forgiven for thinking that entry into a retirement village is all doom and gloom, especially if you have seen recent articles in the media (including Four Corners, titled: ‘Bleed Them Dry Until They Die: The retirement villages ripping off retirees’).
However, it doesn’t have to be, and definitely is not, all doom and gloom. But, it is important to be clear on what you are getting yourself (or your parents) into.
Here’s what you need to know when considering the move into a retirement village in the ACT.
A retirement village is not the same thing as an aged-care facility
Put simply, the difference between the two is that aged-care facilities provide care, retirement villages do not (but it is commonplace for facilities to offer both retirement village and aged-care accommodation options at the same location).
Aged-care facilities are regulated under federal law which sets out a procedure to assess the eligibility of potential residents based on their health needs, and the facility’s capacity to provide the level of care that is required. The fees for aged care facilities are regulated under this legislation, with the effect that some fees are capped and/or means-tested.
Retirement Villages are regulated by State or Territory laws. Entry into a retirement village in the ACT does not require any assessment as to eligibility of your medical needs and the fees are determined under the Agreement between the facility and the resident (in accordance with the legislation).
Retirement villages – what exactly are you ‘buying’?
You are buying a licence to occupy a premises. You are not buying the property itself. This means that you do not own the premises but merely have the right to occupy it in accordance with the terms and conditions of the Agreement. It is not an investment.
What fees can I expect to pay?
Generally speaking, when you enter a retirement village in the ACT you can expect to pay:
Waiting list fees are prohibited under the legislation.
Locked in for life? Getting out of the Agreement
The Agreement will set out the procedure to be followed if you wish to terminate your ‘right to occupy’. Generally, the amount of money that may be refunded will be dependent on the time that has passed since the Agreement commenced. It is usual for agreements to have:
Need help?
All retirement village facilities offer different terms and conditions.
At Chamberlains we review and provide advice on your retirement village agreement to ensure that any decision you make about the next phase of your life is an informed one. Contact our team of property lawyers today.
Are you the landlord or tenant of a commercial premises in the ACT? Is your lease registered? What happens if your lease is not registered? HKH sets the record straight – read on.
In the ACT, all land is leased from the government under what is called a “crown lease”. However this article is concerned with what is properly called a ‘sublease’ in the ACT, that is, where an owner (landlord) leases land to a tenant.
Registration is when a copy of the lease is provided to ACT Land Titles, and for a fee the lease is registered against the title of the property.
As long as the lease is validly executed, a failure to register the lease does not make the agreement between a landlord and tenant invalid.
However, if the term of your lease is greater than 3 years (including the option periods) and a bank has a mortgage over the property, then as a tenant, it is in your interest to ensure the lease is registered.
Why? Because if the lease is not registered on the title, the bank does not have to recognise your right to occupy the premises under the lease (unless it has specifically consented to the lease).
What does this actually mean though? If the landlord were to become insolvent or defaults under a mortgage over the premises a bank is well within their rights to sell the premises and force you to vacate. Your right to occupy the premises in this circumstance is not protected unless the lease is registered.
If your lease term (including any option to renew) is 3 years or less, the Land Titles Act 1925 protects a tenant’s right to occupy the premises under the lease.
HKH acts for landlords and tenants in a variety of commercial leasing matters. If you need help with any commercial leasing matters, contact one of our Property Law experts today.
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There have been numerous reports of dog attacks in the ACT recently, often leaving the victims with serious injuries requiring hospitalisation or in the most serious cases, even death.
A dog attack can be a frightening and traumatic experience, leaving not only serious physical effects, but often psychological conditions including a fear of dogs, flashbacks and nightmares from the attack. As with most personal injury matters, the victims will usually need some time off work and the medical bills start to add up and cause financial stress.
In the ACT, a claim in relation to a dog attack may be made in negligence if the dog owner failed to adequately restrain the dog, or under section 55 of the Domestic Animals Act 2000, which provides that compensation may be recovered from the owner or keeper of the dog for any loss or expense arising from the attack. This can include your own medical expenses and veterinarian bills for your furry friend if they were also injured. However, legal defences are available if you provoked the dog or failed to take care of your own safety, or were unlawfully on another’s premises, and you may not be able to make a successful claim for compensation.
We have acted in many successful claims for compensation following dog attacks and we know how traumatic a dog attack can be. We will handle the claim for you, so you can focus on your treatment. Depending on your circumstances, we can help you to claim compensation for pain and suffering, treatment expenses, lost wages and the care you have required from others.
If you’ve been injured as a result of a dog attack contact Chamberlains injury compensation team for a free first consultation with one of our personal injury experts to discuss your claim and your legal rights. Time limits apply so it is important to act quickly. We’re in your corner.
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In the recent decision of Lotus Property Fund No 8 Pty Ltd [2020] NSWSC 1349 the Court considered an application by a former director to bring a derivative action on behalf of a company. That is, speaking loosely, the former director wanted to “stand in the shoes” of the company to sue another party, because the company wasn’t going to do so itself.
Around $100 million was paid following the development of a site in Sydney. The company was the trustee of a trust that stood to receive some of those proceeds.
The plaintiff – who was a former director of the company – had the benefit of a “side deed” which would see a related entity of his benefit if the company received a greater share of the sale proceeds. The various relationships between the relevant parties had some complexity such that the Court saw fit to prepare two diagrams to describe them.
Some of the sale proceeds were distributed, or were to be distributed, in a way that concerned the plaintiff.
The plaintiff sought the Court’s leave to bring a claim on behalf of the company that the company should receive a greater share of the sale proceeds. It was clear to all that the company was not going to bring the claim itself.
The Court found the application was brought in good faith, with the plaintiff’s motivation being to seek a proper distribution of funds for the benefit of the company.
The “relatively low” threshold of whether there was a serious question to be tried was met.
The purpose of the plaintiff bringing the proceedings – for the company to take a greater share of sale proceeds, or information that would enable it to do that – was found to be in the company’s best interests. This finding was made despite the uncertainties about the plaintiff’s prospects in any litigation, or the potential defendant’s ability to pay.
The plaintiff was found to have no conflict of interest with the company, and so was granted leave to proceed, notwithstanding the absence of notice.
This case is an illustration of how, even if a company does not want to bring proceedings itself, an interested party can seek the Court’s help to “stand in the shoes” of the company and bring proceedings anyway.
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Many young people tend to think they don’t need a Will. Paying rent, coping with a healthy HECS/HELP debt or expanding the cooking repertoire beyond breakfast foods is just about as much adulting as they can handle. We’ve all been there.
Here are five common reasons why young people think they don’t need a Will – and why they’re wrong.
1. “I don’t have anything to give away.”
2. “Nobody wants what I got!”
3. “I don’t have a partner/kids/pet, so I don’t need to look after anyone.”
4. “Even if I had a Will it wouldn’t make any difference.”
5. “I can’t afford to pay for a Will.”
*Written by a young person who has a Will.
Interested in learning more on Wills & Estates?
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Everyone knows they should have a Will. But what actually happens if you don’t?
What happens if you die without a Will?
You would assume that your estate would go to your next of kin – your partner, spouse or kids for example. And you would be right, mostly. The ACT legislation sets out ‘intestacy rules’ for such circumstances in Part 3A and Schedule 6 of the Administration and Probate Act 1929. However, these rules do not contemplate individual circumstances, which can cause your loved ones considerable financial and emotional distress.
Consider John and Roberta*.
John and Roberta were partners for 40 years when John passed away without a Will. John had a daughter from a previous relationship and they both had a daughter together. The only asset of the estate was a house that was in John’s sole name. Roberta thought this was all fine and she would receive the estate, until she was advised that the intestacy rules in the ACT stated that Roberta would only receive the first $200,000.00 of John’s estate and the rest would be divided equally between the two children.
Roberta was devastated. The thought she would have to sell the house which she lived in for years, and be left without the means to buy a new one.
The way forward
Section 49G of the Administration and Probate Act allows a spouse to take the family home instead of the $200,000.00.
Chamberlains found the way forward by assisting Roberta to have the house transferred to her without lengthy Court proceedings by taking advantage of the provisions under section 49G.
Cheaper and easier in the long run
Although we found the way forward for Roberta, an application to the Court had to be made. If John had a Will leaving the house to Roberta, the costs of making an application to the Court to transfer the house under 49G would not have been incurred.
The most important lesson here is to make your intentions clear and give you and your loved ones the peace of mind they deserve by making a Will.
If your loved one has passed away without a Will and you are not sure what to do, Chamberlains can help. Book in and see us today – we can help you find the way.
***Names have been changed to protect their identities***
Contact Chamberlains for a free first consultation with one of our wills & estates experts.
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It’s the question that has lingered on many of our minds since the days of our childhood. It is most definitely unpleasant. Indeed, it can even bring a tear to the eye. When someone lets one slip in the workplace, it might amount to a chuckle, but can it amount to workplace bullying?
That’s the whopper of a question the Victorian Courts had to deal with recently. The Courts had to decide whether “Mr Stinky” (the culprit) engaged in workplace bullying by “lifting his bum and farting” on a work colleague. The Court also had to determine whether the victim of the said flatulence suffered a psychiatric injury and was entitled to compensation to the tune of $1.8 million.
Mr Stinky, as we’ll refer to him, admitted to the farting but denied that it was bullying. In his view, it was just “typical banter or mucking around”.
Well, the Court agreed with Mr Stinky. In the circumstances, which included that the victim had nicknamed the culprit and jokingly carried a can of deodorant with him, the Court held that it was just a case of light-farted, sorry, light-hearted office humour.
Some of us may disagree with the above conclusion. Perhaps especially so, those of us who grew up with brothers (need we say more?). But in a workplace scenario, what obligations does an employer have to provide a workplace free from bullying (and farting)?
All employers have an obligation to provide a safe workplace for employees and avoid causing physical or psychological injury. In the case of bullying, if the employer is aware of
the bullying, or ought to be aware that an employee is at risk of being bullied, the employer must take steps to eliminate that risk. Failure to do so would see the employer looking at a negligence claim.
Although in this case the flatulence foible did not amount to bullying, that’s not to say that in other circumstances it may do, particularly if it was repeated behaviour directed at the same person. While this may have been a case of office humour, we know that in other cases it’s not. Any inappropriate behaviour should always be reported and dealt with by management.
If you need advice in relation to any bullying claims please contact our experienced team at Chamberlains for an obligation-free appointment.
Contact Chamberlains Law Firm for any questions and concerns regarding Workplace Law.
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