The Ugly Truth About Hiring A Lawyer

Hiring A Lawyer

On many occasions, we are consulted by people who have experienced a family breakdown and they have undertaken a significant amount of research online – the legal equivalent to consulting “Dr. Google” when we feel unwell.

Whilst there is undoubtedly a large amount of information available via the internet, much of it of high quality, there is also an enormous amount of misleading, inaccurate, or irrelevant information available.

In principle, of course, it is a good thing that people become better informed and better able to understand their situation. But just as “Dr. Google” won’t replace your local GP or hospital specialist any time soon, the internet rarely enables even the most diligent researcher to replace the skills and experience of an experienced, knowledgeable solicitor.

Going It Alone

We have sometimes been consulted by people who have attempted to draft Court documents themselves, only to have them rejected, sometimes more than once, by the Court because despite their best efforts they simply cannot get the documents correct. 

At other times we are consulted by people who have formed a clear and definite view about what the outcome should be to their family law situation, based on their online research. Our real-world experience and legal knowledge may provide a different perspective and help them see alternative solutions. On many occasions, we have seen homemade wills that have a serious technical error that renders them invalid.

Value For Money

Whilst legal fees may be expensive, a good solicitor will give you value for money. They will listen to you and understand your situation, use their experience and commercial good sense to apply the law, and assist you to find practical, sensible, personalized solutions to your circumstances. 

Many times we have been able to save our clients money by providing sensible advice or by using our experience to find solutions that they were otherwise unaware of. We consider this part of our obligation to keep our clients ‘Ahead Of The Game’.

For a no-obligation, free 20-minutes initial consultation with one of our experienced solicitors, please call us on 1800 217 217 

Article Source: Hiring A Lawyer

What Should You Consider Before Buying Property?

Searches and Seller’s Disclosure

Generally, the property is sold free from encumbrances except those disclosed in the Contract. In addition, there are certain statutory warranties that apply and the Seller may make certain warranties in the Contract regarding the Property’s condition.

We will need to undertake various searches immediately following the establishment of the scheme and registration of the plan creating the lot to establish whether the Seller has complied with its disclosure obligations and that the warranties are correct. In the event of any adverse results, we will advise what rights you have in relation to those matters. Unless you instruct us otherwise, we will undertake all necessary searches immediately following receipt of notice of registration, so that we can protect your interests.

Despite undertaking certain inquiries which may reveal adverse impacts on the Property, you will not always be able to terminate. If searches do reveal unsatisfactory results we suggest you instruct us to give you specific advice about your contractual rights and any remedies you may have. The advice will depend on the nature of the unsatisfactory search result and your particular Contract. For example, the discovery of unapproved structures, non-compliant swimming pool fencing, and flooding do not give you a right of termination or a right of compensation from the Seller. Despite this, searches are still undertaken so that you are well informed of the Property’s condition.

• Present Use

For residential units, the development will usually require approval for a material change of use.

Following construction, it is prudent to obtain a standard town planning certificate to confirm whether a material change of use approval was obtained and the terms of that approval. Our recommendation about a town planning certificate appears below.

• Town Planning Certificates

There are three types of planning and development certificates that can be obtained from the local authority. The information these searches disclose and their relative cost is set out in the buyer’s Searches List:

1. Limited Certificate – (Takes approximately 12 business days)

Provides:

1. 1. Information as to the town plan area or zone in which the Property is located; and
   2. By reference to the plan, a description of the planning scheme provisions applying to the Property.

Limited certificates do not tell you whether the existing use is lawful or whether any conditions for the use of the Property have been complied with. This certificate reveals the designated zone of the land and any other restrictions on the use of land in the zone (e.g. if the Property is in a Demolition Control Precinct or subject to character housing or other development codes of general application to the area).

1. Standard Certificate – (Takes approximately 12 business days)

Provides:

1. 1. The same information as in a limited certificate; and
   2. A copy of every decision notice or negotiated decision notice for a development approval that has not lapsed, which has been issued by the local authority for the Property.

By looking at the existing use of the property, the local authority area or zone and the approvals obtained, it is possible to ascertain if the property is capable of being lawfully used for its existing use or for other uses.

The certificate does not identify compliance with any approval conditions.

1. Full Certificate – (Takes approximately 30 business days)

Provides:

1. 1. The same information in a limited certificate and standard certificate; and
   2. If there is currently in force for the Property a development approval containing conditions (including conditions about the carrying out of works or the payment of money), a statement about each condition’s fulfillment or non-fulfillment.

The full certificate is more expensive because a town planning officer from the local authority needs to inspect the Property and go through approval conditions to identify compliance and non-compliance.

• Recommendation on Town Planning Certificates

1. 1. For a residential dwelling or vacant land, a limited certificate will generally be adequate unless you intend to develop the property when you may require a standard or full certificate;
   2. For residential units, the overall development must have been granted approval for a material change of use. It is prudent to obtain a standard certificate to confirm approval was obtained.

Despite the above, we still recommend you instruct us to obtain a standard certificate otherwise you may not be able to establish that the use is lawful. In addition, information about some local government charges that may apply to the Property (such as infrastructure charges) is only available by obtaining a standard (or a full) certificate. Local government approval for a change in use or a reconfiguration will often include conditions requiring the payment of charges for infrastructure use or upgrade. If the seller does not pay any relevant charges attached to the Property, you may become responsible for their payment.

We recommend, at the very least, that you instruct us to obtain a limited certificate.

It is important to note that any development approval for the Property attaches to it and will bind the owner (and any occupier) of the Property. If you purchase the Property and there are outstanding obligations under a development approval, you may become liable to perform them and for any consequences of non-compliance (including prosecution for an offense).

The only sure way of knowing whether approval conditions have been complied with is to obtain a full certificate. Obtaining a full certificate is costly and takes considerable time (you may not necessarily receive the certificate by settlement even if ordered immediately). The certificate is legally binding on the council and the search may discover non-compliance issues that the other town planning certificates will not.  If you intend to develop the Property or are particularly concerned with compliance with all approvals (and your settlement date is sufficiently far enough away to allow the results to be obtained in time) it can be beneficial. If you require a full certificate please contact us as soon as possible.

• Future Use

If you have any plans to change the present use of the Property or any building structures on it in the future, it is your responsibility to investigate what approvals you require from the local or other authorities. This is not part of our retainer.

• Environmental Protection

The Environmental Protection Act 1994 (Qld) (“EPA”) requires that the Seller makes specific disclosure, before entering into the Contract, if any of the following are applicable to the land (including the common property if in a Community Titles Scheme):

1. The land is listed on the Contaminated Land Register or Environmental Management Register;
2. The land is the subject of an EPA notice or evaluation (generally about possible contamination or notifiable activities such as underground fuel storage); or
3. A magistrate has issued an EPA order for an authorised person to enter the land to conduct an investigation or carry out work.

If any of these apply and the Seller does not give disclosure before you enter the Contract then, you may terminate before the earlier of settlement or possession. If the Seller has not complied with these disclosure obligations, the Seller may still give disclosure after the Contract has been entered into, but you will be given a period of 21 business days after disclosure to terminate the Contract. If you do not terminate in that time you will lose the right. Given the limited time period available for termination, it is important that you contact us promptly if you receive a notice from the Seller to remedy a failure to comply with its disclosure obligations.

If you terminate the Contract because of the Seller’s failure to make relevant disclosure, all money paid by you under the Contract must be refunded.

The searches we undertake only identify land on the Contaminated Land Register or the Environmental Management Register but not notices and orders. If you think the land may be contaminated, consider the prior or current use of the land might contribute to any contamination issues or any notices or orders that may affect the land, please contact us as soon as possible so that we can take the necessary steps.

• Administrative Advice 

Administrative advice may reveal interests on title impacting on the land that require disclosure by the Seller such as heritage listing or agreements, coastal protection notices, nature conservation orders, vegetation clearing offences, or Milton Brewery notices (for a lot in respect of a unit).

Administrative advice on title may note that the land is declared acquisition land under the Queensland Reconstruction Authority Act 2011 (Qld) and the following would apply:

1. The owner is not able to sell the land other than to the authority; and
2. If the owner does want to sell the land the authority must acquire it.

If coastal protection or tidal works notice is given under the Coastal Protection and Management Act 1995 (Qld), this should appear as administrative advice.  If you buy land with this on the title, then the Contract may be of no effect unless the Seller has given you written advice of the undischarged notice not less than 14 days before settlement, or if settlement is less than 14 days after the Contract Date, at or before entering the Contract.

Your rights for any administrative advice, including termination rights, may depend on the administrative advice and the extent of disclosure.

• Physical Limitations, Government Intervention and Operational Issues Affecting the Land

Unless you specifically instruct us to do so or unless the information is provided in the results from our standard searches, our retainer does not include advice about any of the following issues:

• Whether the land is subject to laws about acid sulfate soils;
• Whether there are agricultural land protection laws affecting the site or nearby land, air pollution;
• Animal conservation laws over the site including current or proposed future wildlife corridors;
• Bushfire control laws;
• Whether the site is subject to commonwealth government environmental laws;
• Laws about a potential acquisition of part or all of the site by government or quasi-government entities;
• Whether the site or nearby land is contaminated or potentially contaminated;
• The ability for the site to treat effluent;
• Impacts on the site from current or future extractive resource developments including existing or possible future road haul routes;
• Flooding from storm surge, overland flow, or other sources;
• Foul water drainage, stormwater drainage pipes, sewerage pipes whether existing or proposed;
• Whether you have any rights in negligence or contract or any other basis against an approving or acquiring authority;
• Service connections to the site by services such as sewerage, water, power, telephone, internet or gas;
• Whether the site is subject to land slip-on or steep slopes;
• Any laws relating to waste management and the use of the site for waste management activities;
• The availability of waste collection services for the site; or
• Watercourses and underground water sources on the site and their effect on the usability of the site.

If you have any particular concerns relating to any of these matters then you should contact us.

• Unregistered Encumbrances

Unregistered encumbrances and other government rights or interests may affect the Property or the title such as:

• Unregistered water, sewerage, or combine drains; or
• Access or extraction rights under the Greenhouse Gas Storage Act 2009 (Qld); Geothermal Energy Act 2010 (Qld) or the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

The standard searches may not reveal all unregistered encumbrances or other rights or interests. Council rates searches often show sewerage or drainage lines through the Property.

If you have any concerns about unregistered encumbrances, please contact us as soon as possible.

• State Government – Prescribed Projects

It is possible that infrastructure projects undertaken by the State Government under the State Development and Public Works Organisation Act 1971 (Qld) may affect the land or nearby properties (e.g. water infrastructure pipeline works).

Your use and enjoyment of the land may be affected by a project even though the land is not directly affected. Our searches only reveal issues affecting your land.

We suggest you check to see if projects have been declared or proposed in the area.

• Urban Encroachment

The Sustainable Planning Act 2009 (Qld) (“SPA”) contains provisions for the registration of urban encroachment areas that are known to be affected by the emission of aerosols, fumes, light, noise, odour, particles, or smoke.

If the Property is in an affected area, then you are restricted from taking proceedings against the industry making the emissions, with few exceptions.

There is generally no termination right if it is discovered that the Property is in an affected area. However, contracts for units in the Milton Rail Precinct that are subject to a current development application made before 27 April 2009 may be terminated if you did not receive a notice before the Contract.

An owner must not lease a unit in an urban encroachment area before giving notice to any tenant that the unit is in the area and noting the restriction on proceedings.

• Neighborhood Disputes

Please tell us if you hear about or receive any copies of documents relating to disputes between the Seller and neighboring property owners about dividing fences or trees.  In particular, please tell us if you are aware of any:

1. Notices to fence from a neighbor; 
2. Applications to QCAT for fencing or trees; or 
3. QCAT orders for fencing or trees affecting the Property.

If there are three applications or orders affecting the Property and you receive them from the Seller before you enter into the Contract, then you can be obliged to respond to the QCAT application or complete work specified in an order which has not been completed.

If copies of three applications or orders are not given to you prior to your entry in the Contract then you may have the ability to terminate at any time prior to settlement. The Seller may also be liable for your reasonable legal and other expenses incurred in relation to the Contract after you signed it.

If you complete the purchase and the Seller has not completed all work required in a QCAT tree order not disclosed to you before the contract, the Seller will remain liable to carry out the work after settlement.

• Building Covenants

Are you aware of any building covenants affecting the Property or have you signed any document relating to any covenants? If so, please provide us with details and a copy of any documents signed, as these may impact your proposed use of the Buying a Property or bind you to additional contractual obligations or liabilities. 

Article Source: Buying Property

Early Superannuation Access – How To Exercise Your Rights

In the wake of the recent COVID-19 pandemic, the Government has allowed early access to superannuation funds for certain groups of people and traders. Although the early access prescription appears easy to follow, there can be cases that fall on the eligibility borderline. The scales weigh more on the side of eligibility rather than the ineligibility side of early access for the applicant. The simple consequence of this misinterpretation could risk an eligible applicant becoming an ineligible one.

What did the Government Say?

The Government would allow early access to the super funds by those affected by the COVID-19 crisis. Basically, an eligible super funds member can withdraw $10,000.00 this financial year which ends on 30 June 2020, and another $10,000.00 next financial year which starts as of 1 July 2020. This is tax-free the Government said. The measure is designed to address the existing hardship on the eligible individuals and traders to whom this new ruling would apply.

I am currently employed but my wife has been made redundant. Can we both apply for early access to our super funds?

If you are still working and it is only your wife who has been made redundant after 1 January 2020, then your wife can only exercise her right of early access to her super funds. To become eligible, She needs to show that either:

• As an individual, she was made redundant by her employer, or her working hours reduced by 20% or more; or
• As a sole trader, her business has suffered a 20% or more reduction in her turnover.

I am unemployed but receive a job seeker payment. Can I still apply for early access to my super funds?

Ans: Yes, you can.

I receive a youth allowance for job seekers. I have not many funds left in my super. Can I still apply for early access, or do I need to have a minimum available in my super funds?

Ans: Yes, you can. So far the Government has not set a benchmark for the available funds in a super account. The Government has however defined the maximum that can be withdrawn from the super funds in this and next financial year.

I currently receive parenting and some other special payments from Centrelink, can I still apply for early access to my super funds?

Ans: Providing you meet the individual, or, the sole trader tests above, yes you can.

Having read your article here, I now know that I am eligible to have early access to my super funds, how do I do it?

Ans: Applications are to the ATO via the MyGov website. The process is pretty simple. The ATO will verify the applicant, assess the application, record the bank account details, and make a decision. The ATO will then direct the nominated fund to release the requested amount to the bank account specified by the member. It is essential to know is that the member does not need to contact his/her super funds at all in the process.

Just so I could educate myself, what is the total amount that this scheme will allow to be accessed from the super funds, and how much more will be left in the super after?

Ans: According to the Government, it is estimated that around $27 billion funds might be taken out via early release, however, this is less than 1% of a circa $3trillion superannuation in the system owned by the Australian members.

By Abolfazl Moghadam

Article Source: Superannuation Access 

Who Needs To Obtain A Travel Exemption To Travel To Australia?

This article aims to summarise who needs to obtain a travel exemption to travel to Australia and what are the exceptions. 

Facts on travel exemption to Australia

The department of Home Affairs announced that from 15 December 2021, eligible visa holders can travel to and from Australia without needing to apply for a travel exemption. Prior to that date, Australia’s international border was largely closed, and persons arriving into Australia had to obtain special permission to enter the country.

Who does not need to seek a travel exemption? 

If you are able to verifiably show that you are fully vaccinated with a vaccine recognized in Australia and you are automatically exempt from Australia’s travel restrictions, then you may be able to travel to Australia without seeking a travel exemption. 

Who is automatically exempt from Australia’s travel restrictions?

Here are some of the exemption categories. The list is not exhaustive:

• An Australian citizen
• A permanent resident of Australia
• An immediate family member of an Australian citizen or permanent resident
• A New Zealand citizen usually resident in Australia and their immediate family members 
• A  person who has been in New Zealand or Australia for 14 days or more immediately prior to arrival by air in Australia
• A person transiting Australia for 72 hours or less
• Airline crew, or maritime crew including marine pilots
• A diplomat accredited to Australia, including their immediate family members (each member of the family unit must hold a valid subclass 995 visa). 

What are the countries designated as Safe Travel Zones?

From 15 December 2021, if a person is an eligible citizen of the following countries and is fully vaccinated, the person will be able to arrive from either of these countries to Australia without seeking a travel exemption to participating states or territories:

• Japan
• New Zealand
• Singapore
• South Korea

What is the current definition of Fully Vaccinated acceptable to Australia? 

A person is considered to be fully vaccinated for travel to and from Australia if the person has completed a course of a vaccine approved or recognized by the Therapeutic Goods Administration (TGA). This includes mixed doses. At the time of writing, currently approved recognized vaccines and doses accepted for travel are:

• Two doses at least 14 days apart of:
• AstraZeneca Vaxzevria
• AstraZeneca Covishield
• Pfizer/Biontech Comirnaty
• Moderna Spikevax or Takeda
• Sinovac Coronavac
• Bharat Biotech Covaxin
• Sinopharm BBIBP-CorV (for people under 60 years of age on arrival in Australia)
• Gamaleya Research Institute Sputnik V.
• Or, one dose of the Johnson & Johnson/ Janssen-Cilag COVID vaccine.

(This list may change)

For vaccinated people, how long must have passed since the final dose of vaccine was administered? 

For a person to be considered fully vaccinated, at least 7 days must have passed since the final dose was administered for that person.

What are the exceptions for children and others?

Those with acceptable proof they cannot be vaccinated for medical reasons, and children under 12 can access the same travel arrangement as fully vaccinated travellers. In some states or territories, arrangements are also in place to allow unvaccinated or partially vaccinated children aged 12-17 years to travel with a fully vaccinated adult. You need to check the quarantine arrangements for the state or territory prior to the commencement of your trip. If the child is travelling with unvaccinated adult family members, then the entire family group will be subject to managed quarantine and passengers caps. 

Children aged under 12 years count as fully vaccinated for travel purposes. Their passport will be used as proof of age at the airport. 

NOTE: The situation for overseas visitors who do not fall within these categories, or those who want to come to Australia for employment is frequently changing. We are always up to date with the current situation, and if you require legal advice or assistance in applying for a visa to enter Australia please contact us.

For advice or assistance with all immigration matters and the latest update contact the Immigration Law Team at Aylward Game Solicitors today on 1800 217 217

Article Source: Travel Exemption Australia

Working To Reduce Paper Work In Property Conveyancing

If you have been hiding under a piece of paper, then you may not know that the way in which the Titles Registry deals with paper certificates of title (aka paper CTs or Title Deeds) is changing(Property Conveyancing act).

A bill was passed in Parliament on 26 March 2019 amending the Land Title Act 1994 so that paper CTs will no longer have any legal effect. Accordingly, from 1st October 2019, a paper CT will become a piece of history with its only value being that of sentiment.

Once upon a time, every property in Queensland was issued with a paper certificate of title. The certificate was always required as evidence of your indefeasible title over your property. Consequently, lost or stolen certificates raised huge issues for a homeowner.

If you are part of the 11% of homeowners, who do hold a CT, as of 1st October 2019, the burden to protect this piece of paper will be for nothing.

It is not all bad news, just think; you will no longer have the pressure of storing this very important piece of paper to show your ownership. You will have no requirement to deliver this important piece of paper to Settlement should you sell in the future.

Gone are the days of stressing as you try to locate the certificate that has been a “safe place” for many years which you now cannot remember where that is. We can assure you (if you have not experienced this yourself) the process in relation to a lost CT includes jumping endless hurdles of advertising, declarations and of course, this all comes at a cost!

Instead, these will be converted to electronic Certificates of Title to follow the push towards Queensland becoming an electronic conveyancing act system.

Now, this may seem like a drastic change, but we do anticipate a few benefits. Most importantly, this electronic process will be cost-effective and save time for all parties. Should you still be worried, never fear, we have experienced legal practitioners who can give you advice on this matter to avoid any possible free legal advice issues in the Property Conveyancing.

Finally warning: from 1 October 2019, there will no longer be the option to lodge a Form 19 application for a certificate of title. Should you wish to have an item that is soon to be historic, please urgently contact our office on (07) 3236 0001 so that we can arrange a Certificate of Title for you. 

Article Source: Property Conveyancing

How Do I Obtain a Divorce Application in QLD?

The process of getting divorced is the same across Australia, as marriage and divorce are Federal responsibilities. So whether you are in Queensland or elsewhere around the country, the procedure is the same.

To obtain a divorce you need to complete and file with the Federal Circuit Court an application for a divorce. To be eligible for a divorce you need to be validly married, (not necessarily in Australia), to have been separated for at least one year, (you can be separated under one roof), and to have informed the other person that you consider that you are separated.

It is also necessary to ensure that you meet the jurisdiction requirements, such as being an Australian citizen or being present in Australia for at least the previous 12 months.

The application process is relatively straightforward and is designed to be completed online. It is possible to make a joint application for a divorce or a sole application. Many people are able to complete the application for a divorce without advice from a solicitor, but sometimes it is better to get some legal advice, especially;

• If you have been separated under one roof – you need to prepare and file some extra evidence.
• If you don’t know where the other person lives
• If you anticipate that the other person may avoid the service of the application
• If you have been married for less than 2 years
• If your marriage certificate is not written in English

Getting divorced just brings your marriage to an end. It does not deal with parenting arrangements or property settlement. If you get divorced and you have not dealt with property settlement, you have 12 months from the date the divorce is made final to commence the process of dealing with property settlement.

This is a strict deadline, if you need legal advice about any Family Law matter, call the Family Law team at Aylward Game Solicitors on 1800 217 217

Article Source: Divorce Application