Austral Legal

03/02/2025

Administering an Estate?

If you or someone you know requires advice or assistance with administering an estate or applying to the Court for a Grant of Probate or Letters of Administration, get in touch with Austral Legal on 08 9745 9550 or email to [email protected].

We can offer fixed fees for these types of applications, which provides costs certainty upfront. Austral Legal. Practical advice.

05/01/2025

Welcome to 2025. Our office re-opens at 9am today following our Christmas break.

30/06/2024

Need to get your divorce sorted?

From time-to-time lawyers are asked whether a married person who has been separated for a long time needs to bother getting divorced. The short answer is yes. The longer answer goes something like this…

There are many examples where the law presumes that a spouse has certain rights in relation to their husband or wife, and as a result, where a person is incapacitated or dies while still legally married, their spouse is presumed to have certain legal rights in the absence of evidence to the contrary. For example, under the Administration Act in Western Australia a spouse is presumed to inherit from their husband or wife, and a spouse is also presumed to be a ‘dependent’ for the purposes of receiving a death benefit payment from a superannuation fund. In short, remaining married after separation and not applying for divorce can cause potentially significant problems for family members in the event of your untimely death, and in some cases, result in your ex receiving assets from your estate that you (most likely) would have preferred to have passed to other people.

To apply for a divorce, as a general starting point you will need to first wait a minimum of 12 months from the date of separation (although there are some exceptions). Couples can (and do) often resolve the division of their relationship property and parenting matters within that timeframe, and where that occurs, often the divorce application becomes a task which for one reason or another, is not subsequently get ticked off. Similarly, it is also important to review and update your superannuation death benefit nomination and put a Will in place, if you have not already done so.

A divorce application is made to the Court and is generally not an overly time consuming or difficult process. Depending upon whether the application is made individually by one party, or jointly by both parties, there are different forms to be completed and provided to the Court. If you have children under 18 years old and do not have formal arrangements in place for the care and custody of those children, then there are also some additional questions which the court requires sufficient information about prior to granting a divorce application.

If it is time for you or someone you know to get around to making that divorce application that has been thought about, and maybe talked about, but never quite actioned, then Austral Legal can help. We offer fixed fee divorce applications, from $1,000* plus the Court filing fee. We recommend that in the first instance you discuss your situation with us in our SmartMove initial 30-minute discounted consultation (in person or by phone), which we offer for just $80 and which can be booked through our website or by simply getting in touch. From there, we expect to be able to work out the best approach to take in your situation, and explain the process in more detail so you know what to expect. Austral Legal. Practical advice.

Austral Legal is a general practice law firm offering a range of legal services on either an hourly rate basis or a fixed fee basis where possible.

05/02/2024

New penalty regime - Are your business standard terms and conditions fair?

There have been recent changes to the Australian competition and consumer law which came into effect on 9 November 2023. Businesses have 12 months in which to bring their contracts up-to-date to ensure compliance before the penalty regime applies (see below).

The changes can be summarised as an effort to further protect consumers and deter the use of unfair contract terms. The key takeaway to be aware of is that to propose and rely on an unfair contract term is now an offence and civil penalties can be imposed.

What is an unfair term?
An unfair contract term is one that:
• causes a significant imbalance in the rights and obligations of the parties;
• is not reasonably necessary to protect the legitimate interests of the party seeking to rely on it; and
• causes financial or other detriment to one party if the other party seeks to rely on it.
Further, this may include terms that enable one party (and not the other) to:
• avoid or limit their obligations under the contract;
• terminate the contract;
• penalise the other party for breaching or terminating the contract; or
• vary the terms of the contract.

Where an unfair contract term is found to be proposed, applied or relied on, the penalties imposed can be:
• for an individual, up to $2.5 million; or
• for a company, up to the greater of:
o $50 million;
o 3 times the value of benefit from the contravention; or
o where benefit cannot be determined, 30% of adjusted turnover during the breach turnover period.

The penalty regime establishes a significant financial risk to businesses should an unfair contract term be found to exist within a contract.

The role of ‘standard form’ contracts
Standard form contracts are widely utilised as they provide a quick and efficient way to formalise an agreement. These contracts are made up of terms that are often subject to little or no negotiation. If your business uses a standard form contract, then now is the time to have it reviewed.

We recommend that in the first instance you discuss your situation with us in our SmartMove initial 30-minute discounted consultation (in person or by telephone), which we offer for just $80 and which can be booked through our website or by simply getting in touch. Austral Legal. Practical advice.

17/12/2023

Austral Legal will be closed over the Christmas break from 1pm Friday 22 December 2023 until 9am Monday 8 January 2024. We wish you all the best for an enjoyable festive season.

13/11/2023

Choosing the right business structure for your business

Choosing the right business structure for your business is an important decision. Getting it wrong can have consequences for the business, as well as you personally. Your choice of business structure can also have significant impacts on safeguarding your business and personal assets, tax obligations and optimising your returns. Each business structure has advantages and disadvantages to consider.

Sole traders and Partnerships
The simplest structure is that of a sole trader, followed by being in a partnership. Each are generally quite inexpensive to establish and maintain. Sole traders are in effect an individual operating a business in their own right, with unlimited liability against their own personal assets. A partnership is between two or more parties and as a general rule, each partner is jointly liable with the other partners for all business debts. Again, there is generally unlimited liability against personal assets.

Companies and Trusts
Companies and trusts are often the preferred business structures for small to medium-sized businesses. A company is a separate legal entity and as such, is distinct from a natural person. This can offer significant benefits in terms of asset protection and potentially some tax benefits also. The company is controlled by directors, and the directors are appointed by the shareholders. Directors have certain obligations under the Corporations Act (which governs companies in Australia), but the liability of shareholders is usually fairly limited.

Like a company, a trust can have the benefits of asset protection and potential tax benefits. Establishing a trust involves the trustee or trustees (whether individual/s or a company aka a ‘corporate trustee’) holding assets ‘on trust’ for the benefit of the beneficiaries of the trust. There are also different types of trusts, for example discretionary trusts (aka ‘family trusts’) and unit trusts amongst others. The type of trust set-up will often be determined by the nature of the industry the business operates in and the people involved in the control of, and/or investment into, the business. Unlike companies, trusts are not legal entities. Instead, a trust is a legal relationship between the trustee/s and the beneficiaries of the trust.

Conclusion
Being in business can be very rewarding. However, obtaining good advice about your individual circumstances is important to ensure that you are in (or setting up) a business structure which is suitable for you and your business. Sitting down with a lawyer (and other professional advisors as required) is a sensible and pragmatic step to take to ensure that you understand some of the pitfalls to avoid in your business structuring decisions, and help better prepare yourself for long term success. If you would like to build a relationship with a law firm which takes a genuine interest in you and your business, then now is the time to get in touch. We recommend that in the first instance you discuss your situation with us in our SmartMove initial 30-minute discounted consultation (in person or by telephone), which we offer for just $80 and which can be booked through our website or by simply getting in touch.

Austral Legal. Practical advice

22/09/2023

Setting up in business for yourself

For the entrepreneurial amongst us, starting out in self-employment and building your own successful business, either by yourself or with other people, is a highly attractive proposition. However, there is a lot at stake with plenty of risks for the unwary.

At the start, there will inevitably be excitement, enthusiasm and optimism. No need to dampen that with a pessimistic lawyer right? So thought many of our clients who we assist when things don’t quite go to plan and problems arise. The frustrating part of this for both clients and lawyers alike, is that many common problems and disputes are often wholly or largely preventable if some time (and yes money) is spent up-front addressing where things may go wrong, and then putting strategies and documents in place to mitigate against risk.

Indeed, at a very basic level it is not uncommon for us to find that a client is a sole trader and has significant personal exposure against their own (often very valuable) assets with little, if any separation between them personally and their business. Handy from a tax perspective, right? Awful from an asset protection perspective when being sued. When we then run through potential alternative business structures, common answers we receive is that the person was unaware of alternative structures, or that they didn’t want to have pay for an extra set of tax returns for a company structure.

Another common scenario we come across in our practice are people who are in business together, whether as directors/shareholders in a company, or in a loose partnership arrangement, but with no shareholders or partnership agreement in place. Everything ticks along nicely, until, well, it doesn’t. With a well drafted agreement, disputes and problems between business partners can usually be resolved without great difficulty or cost. The alternative can be both slow and very expensive.

Then there are the more mundane documents and clauses that you may not think are important, but which can bring businesses badly unstuck. Documents such as service contracts, incorporating directors guarantees on credit accounts or leases, and standard-form terms and conditions customised for your business and industry. All expensive, legal mumbo-jumbo right? Wrong. Often the cost of putting these documents and clauses in place up-front is a fraction of the cost of sorting out just one two disputes arising when they are poorly drafted or worse, non-existent.

Going into business for yourself can be a very exciting time. Sitting down with a lawyer (and other professional advisors as required) is a sensible and pragmatic step to take to ensure that you understand some of the pitfalls to avoid in your business and better prepare yourself for long term success. If you would like to build a relationship with a law firm which takes a genuine interest in your success, then now is the time to get in touch. We recommend that in the first instance you discuss your situation with us in our SmartMove initial 30-minute discounted consultation (in person or by telephone), which we offer for just $80 and which can be booked through our website or by simply getting in touch. Austral Legal. Practical advice.

18/09/2023

Are you the trustee or a beneficiary of an Estate? Read on.

A trustee of an Estate holds a fiduciary duty to the beneficiaries of the Estate. This means that the trustee can only act in the best interests of the beneficiaries. In other words, it is not open to the trustee to use any of the assets of an Estate for any other purpose.

In addition to the above, trustees have a duty to act in good faith and exercise due care and skill. Where a trustee fails to adhere to these standards, then it is open to a court to either make an order removing the person from their role as trustee, or to hold them personally liable for any loss to the beneficiaries arising from their actions as trustee.

In light of the above, it is important for trustees to seek legal advice for clarification of their responsibilities and the manner in which they are to be discharged. Obtaining professional advice (eg legal, accounting, taxation, financial etc) will ordinarily be an Estate expense and reimbursable to the trustee from Estate funds. By extension, a trustee ought not ‘go it alone’ to minimise costs where the consequences for doing so could potentially be much greater for the trustee if mistakes are made. This is particularly the case where there may be contentious issues such as a potential family provision claim in an Estate matter, or acrimonious relations with or between beneficiaries.

The role of a Trustee is often fraught with risk. It can be highly scrutinised, and for good reason. If you are a trustee and require information about your obligations, or if you are a beneficiary and have concerns about a trustee's actions, then now is the time to get in touch. We recommend that in the first instance you discuss your situation with us in our SmartMove initial 30-minute discounted consultation (in person or by telephone), which we offer for $80 and which can be booked through our website or by simply getting in touch. Austral Legal. Practical advice.

14/08/2023

One for the horse (and perhaps camel) riders amongst you... be sure not to lead more than one other animal on a public road when you're out riding as if you do you could be stung with a $50 fine under the Road Traffic Code. To be clear, leading one animal is perfectly acceptable. Ride on.

Austral Legal is a general practice law firm offering a range of legal services on either an hourly rate basis or a fixed fee basis where possible.

02/07/2023

Suing or being sued in the Minor Claims Division of the Magistrates Court?

If you or someone you know is contemplating or involved in a minor case claim (under $10,000) through the WA Magistrates Court, then you should read on.

It can be daunting to utilise the Minor Claims Division to resolve a dispute you have found yourself in, but that need not be the case. The Minor Claims Division aims to bring the parties to a resolution as quickly and efficiently as possible by encouraging a compromise settlement where it is appropriate to do so. If a compromise settlement cannot be reached, then the Magistrates Court will program the claim to a trial. All proceedings will usually be held in private unless the Court orders otherwise, although relatives and friends may be present at the trial unless the Court orders otherwise.

There is a presumption against the parties having lawyers in court in a minor case claim unless all parties agree otherwise, or the Court is satisfied that none of the parties will be unfairly disadvantaged as a result. This approach is intended to keep costs down as much as possible. However, getting some background assistance is both encouraged and often sensible, as if your claim or defence is unlikely to succeed then it is best to find that out before suffering an embarrassing outcome at trial and potentially being criticised by a Magistrate for wasting the court’s time and resources.

Claims must be lodged online through the eCourts portal and there will be a filing fee payable on lodgement, which varies depending upon the person/entity lodging it. A common filing mistake is the claimant failing to correctly identify the legal entities involved eg a company or partnership rather than an individual. It is important to get these basic details correct to avoid delays in the court process, or worst case, having a claim struck out altogether.

Once filed, the claim will then need to be ‘served’ upon the other party or parties. That can be done by the bailiff (which is organised by the court) at minimal cost. Once served, the other party or parties have 14 days (if service is within Western Australia or 21 days if service is within another State or Territory of Australia) to respond. You cannot do anything until the defendant’s time to respond has expired. What happens next will depend on how the defendant responds to the claim.

Finally, if you have read this far and think that you may need some preliminary advice in your matter then we recommend that in the first instance you discuss your situation with us in our SmartMove initial 30-minute discounted consultation, which we offer for $80 and which can be booked through our website or by simply getting in touch. Austral Legal. Practical advice.