What Is A Caveat And Do You Need One?

Introduction to Caveats

In Queensland title (ownership) in land (including where applicable, improvements – e.g a house) is determined by registration of your interest with the Land Titles Office, headed by the Registrar of Land Titles.

Given the importance of registration, if you have an interest in land that for some reason is not registered there is a risk that another person may register their interest before yours with the other person’s interest ranking above or having a higher priority than your interest.

In such circumstances we may recommend you consider lodging a “caveat” on the title to that land to protect your interest. The word caveat means ‘beware’ and lodging a caveat warns anyone dealing with the land that someone has a priority interest in that land.

However, it is important to understand that a caveat does not provide all of the benefits of registration of your interest and should never be seen as an alternative to registering your interest on the title to the land.

What is a Caveat?

A caveat is a notice to the Registrar and the world at large which, subject to some exceptions, prevents the registration of an instrument or document claiming another interest in the land affecting the interest claimed by the caveator (the person who lodges and receives the benefit of the caveat) in that land until the caveat is withdrawn, removed, lapses or is cancelled.

Who Can Lodge a Caveat?

Only a person who has a caveatable interest is entitled to lodge a caveat or to instruct their lawyer to lodge a caveat on their behalf. Such parties include

• a person claiming an interest in land;
• a person to whom an Australian court has ordered that an interest in land be transferred;
• a person who has the benefit of a subsisting order of an Australian court in restraining a registered proprietor (owner) from dealing with land; and
• by a purchaser under an instalment contract

There are a number of circumstances where a person might claim an interest in land and wish to consider lodging a caveat.

Some typical examples are as follows:

1. EXAMPLE 1 – A Purchaser of Land
   A person who has entered into a contract to purchase land (purchaser), on that contract becoming binding between them and the seller, acquires what is known as an “equitable interest” in the land being purchased. It is this equitable interest that qualifies as a “caveatable interest” entitling the purchaser to lodge a caveat. The purchaser will not be the legal owner of the land until the transaction settles and their interest is registered with the Land Titles Office. The purchaser’s interest is therefore subject to a risk that someone else could register another interest in the land before the purchaser registers theirs. By lodging a caveat a purchaser can prevent others from registering interests ahead of their interest.
2. EXAMPLE 2 – Parties to Family Court Proceedings
   This would cover a person who is a party in family law proceedings and wants to prevent any dealings with the property before those proceedings are resolved.
3. EXAMPLE 3 – A Person Claiming a Trust in the Property
   This would cover a person who has contributed funds for the purchase/maintenance of a property but holds no legal interest in the property.

Lodging a caveat

It is best to consult a lawyer so that advice can be obtained as to whether a caveatable interest actually exists, whether there are any contractual prohibitions on the lodging of a caveat, and whether further registrations to be made on the caveator’s behalf may be affected.

There is also a risk that the caveatee (person over whose land the caveat has been lodged) may bring a Supreme Court action for the removal of a caveat and if successful the caveator may be exposed to the risk of costs and compensation orders.

Effect of a Caveat

A caveat has the effect of prohibiting the registration of an instrument or document, affecting the land or interest claimed by the caveator until the caveat is withdrawn, removed, lapses or is cancelled.

Lapsing of Caveats

Caveats will lapse (hence be of no effect) after the expiry of three (3) months from the date of lodgement unless you register your interest (if possible) or commence court proceedings against the caveatee in respect of the interest claimed by you.

Conclusion

It is not possible in a short article to cover all aspects of caveatable interests and caveats but we are always happy to discuss with you the following matters:

• whether you have a caveatable interest;
• any risks that you may face by lodging a caveat;
• whether a caveat should be lodged to protect your position;
• assist you in defending an application to remove the caveat;
• registration of your interest (if available) on a timely basis; and
• instituting legal proceedings, in support of the interest claimed when lodging the caveat, on a timely basis

Please check out some other important articles on our blog:

Is The Bar Marginalising Mediators? | Lawyer Brisbane

Property Conveyancing Transaction | Property Lawyer

Are the Legal Services Commission (LSC) | Employment Lawyers Brisbane

👉👉 Find Experienced Property lawyers near you on Google maps (AylwardGameSolicitors - Google Search) anytime at Aylward Game Solicitors

Contact
United Service Club
Level 4, 183 Wickham Terrace, Brisbane QLD 4001

Free: 1800 217 217
Phone: 07 3236 0001
Fax: 07 3236 0005

Article Source: What is a Caveat? 

What Every Business Manager Needs To Know About Unfair Dismissal

UNFAIR DISMISSAL? A term slung around very often.

But what do employers need to know, and probably don’t?

A useful statement from a senior Judge of the employment court in a mediation conference was where he told both lawyers that “it is all about conducting a proper assessment of the risks and making sure your clients understand them”. When considering dismissing an employee, it is probably timely to ask yourself the question – As an employer have you considered any and all risks that termination of an employee may bring upon you?

As an employer why should you avoid unfair dismissal claims and how?

An unlawful dismissal can cost an employer in terms of time, money, and reputation. Claims can be multiple so are the remedy(s). To properly dismiss and to minimize your penalty risks, simply ask these questions from yourself, although the list is not exhaustive:

• Is termination the only way to address the employee’s conduct?
• Is this in accordance with the termination clause in the employee’s agreement?
• As a decision-maker, have you directed your mind correctly to the reason for termination and the consequences of your decision; and
• As a reasonable person in the employee’s shoes, do you consider the dismissal fair and reasonable?

What if the termination is the right call?

Whether it is a simple termination or summary dismissal, always double-check your facts, notes, and the history that led the situation to become what it is before you. At best, if the termination call is the right one, and unless the situation is not serious to warrant summary unfair dismissal, make sure that:

• You are not overreacting to a matter that may deserve a lesser action than termination;
• You have proper procedures in place to investigate the issue that gave rise to the termination and before terminating anyone;
• You give the employee a chance to narrate their side of the story within a reasonable time and accord them with the right to have support persons with them throughout the process and when you are investigating the matter before you;
• To allow a fair investigation, you provide the employee with paid leave (This may sound costly, but the result will generally be to your benefit in the long run); and
• You only terminate if the agreement allows you to do so, and ensure that you are correctly interpreting your termination clause.

What if you are unsure that termination is the right call or not?

The employer’s quagmire would be when the employer is unsure of dismissing an employee or not. Obviously, it is a natural expectation that as an employer you wish to save face with other employees, and accordingly do not want to take the wrong step. It is, therefore, always better to seek qualified employment law advice if you are unsure whether to fire or keep an employee.

Can you fire your employee when the relationship of trust and confidence is broken?

The answer may be drawn from a law maxim; “lex neminem cogit ad vana seu inutilia peragenda” which means; the law does not compel one to do useless things.

That is, if you and the employee cannot work side-by-side and you have valid reasons, providing such a term is stipulated in the employment agreement, you may terminate the employee. To do so, however, you need to ensure you have valid supporting documents as proof that the relationship of trust and confidence between you the employee, was broken such that the relationship was unsustainable. You also need to ensure that in a valid termination, all accrued entitlements are paid to the employee without delay or hindrance and that you document everything you do.

If you face the difficult task of firing your staff, for whatever reason, then speak to an experienced employment lawyer on 1800 217 217 today.

Article Source: employment law brisbane 

What is Power of Attorney and When Would You Need It ?

In simple terms, a power of attorney is a legal document where a person is nominated to act on your behalf (known as the agent) regarding your affairs. The document gives the nominated party the legal capacity to make decisions for you on things like financial matters and other duties.

The person given attorney does not have to be a lawyer, although in many cases a law firm is enlisted to act as power of attorney.

Some common tasks of those entrusted with power of attorney can include, but are not limited to:

• The buying and selling of property
• Operating bank accounts
• Organising the paying of bills and debts
• The power to vote in meetings
• And lots more…

The tasks involved will depend on particular circumstances and what the principal (the person delegating the power of lawyer) requires and stipulates.

When Might You Need To Delegate Power of Attorney?

Many people only assume power of attorney is entrusted to someone when the principal no longer possesses the mental capacity to make sound decisions, such as in the case of someone with Alzheimer’s or suffering an incapacitating illness or injury.

While this is often the case, the are other scenarios where you may need to consider giving someone you trust the power of Solicitor, even on a temporary basis.

One such instance is when you might be required to spend a significant amount of time overseas and find it too difficult to handle all your affairs back home from abroad.

If you, the principal, lose your capacity to make decisions, then the power of attorney you delegated will cease.

Will and Estate Planning Brisbane

When it comes to preparing wills, estate planning and matters regarding the power of a lawyer, your local and highly experienced law firm in Brisbane is Aylward Game Solicitors. If you need advice regarding the delegation of power of solicitors to someone you trust, then think of us first.

Article Source: power of attorney

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 To Face Employment Agreements During Harsh Economic Conditions

Most adults, at one point or another, are faced with a form of an employment contract. For some, it is presenting an employment agreement to a potential staff member, and for others, it is receiving an employment agreement as an employee. There are many interests at stake for both sides, and typically it involves some type of negotiation. In harsh financial conditions, this process becomes even more critical.

But what is at stake here is not only complying with the statute when drafting an agreement but believing in the idea that any agreement to be drafted must be fair and clear. Assuming that we have a neatly crafted employment agreement before us, should we look for what I call employment golden catches. The short answer is, yes.

Cover yourself

The first step before inking anything is to never rush it up. Take that draft with you home, read it and understand it. Once, you are certain the terms satisfy your objectives then finalize it with your employer. Always remember that in any negotiation the duty of good faith is obligatory for both employer and employee. The Fair Work Act 2009 s 228 [the Act] sets out the good faith bargaining requirements. In simple terms, this is not an option for either side. It is a must-thing-to-do. The duty is wider in scope than the implied mutual obligation of trust and confidence.

Know what you’re getting yourself into

The second step is to know what type of employment agreement you are about to enter into. Are you a casual employee, part-time, full-time, or an independent contractor? It is very crucial, especially for the employees to know the distinction between being an employee or an independent contractor. For if it is the latter, and although the Act provides for some general protections to independent contractors and their principals, it does so in conjunction with the Independent Contractors Act 2006.

Take precautions

The third step is to observe the famous saying that, “prevention is better than cure”. Never try to doctor yourself. I would seldom form my mind on any agreement that would either include my interest or the interest of people I may emotionally attach to. An emotion while being capable of building a notion, is quite capable of destroying it as well. It can easily overcome the power of wisdom if wrongly given due consideration. Remember the right to seek independent legal advice is yours and only yours to pick.

Install exits

The fourth step is the entry-exit mechanism. Take the famous saying; “I won’t enter a place if I don’t know how to get out”, literally. Whether you are an employer or an employee, you want to know your rights such as what entitles an employee to remain at a workplace, or keep the employee at the workplace. As an employee, you want to know what may enforce your way out, or as an employer, how you may show your employee the way out. Approaching a situation with a procedural mindset will help work through these problems. Often employers are caught in wrongful dismissal claims and genuinely believe they were acting in accordance with the law or employment contract at the time they made the dismissal decision. This is only to learn later, that their decision was overturned by the court.

Disclaimer (irritating yet important!): The information on this page is general information only and must not be relied on as legal advice. For legal advice in negotiating the terms of your employment agreement, speak to an experienced employment agreement lawyer on 1800 217 217.

You may also find this article helpful Employment Law Matter Brisbane

Article Source: Employment Agreements 

Commercial Litigation | Brisbane Solicitors

At Aylward Game Solicitors we are able to assist you to protect and/or defend your legal rights and entitlements in all Queensland Courts (including any tribunals where parties are able or have been granted leave, to be legally represented) and all Federal and Circuit Courts (including the High Court of Australia). We have strong ties with similar firms in Sydney and many parts of Australia.

Our focus at Aylward Game Solicitors is always to take a practical approach to dispute resolution and wherever possible we will endeavor to obtain resolution for you by negotiation or mediation before commencing or pursuing formal legal proceedings or commercial litigation. Litigation, like surgery, is a last resort. It’s a bloodsport, one party wins and the other loses.

What is Commercial Litigation?

Litigation is a dispute or judicial confrontation that leads to a trial. We can say that it is synonymous with a lawsuit or practice where the parties involved defend their positions. Billions of dollars are involved in commercial litigation. They can also be for smaller amounts. Regardless of size, most parties involved in commercial litigation will try to reach an agreement without resorting to legal procedures; however, commercial litigation is required to resolve the dispute when negotiations fail.

Commercial litigation arises from many disagreements, and the scope of this area of ​​law is considerably broad. Some of the most normal types of litigation include finance and investment, intellectual property, breach of fiduciary obligations, and insurance disputes. With a general idea about these commercial litigation categories, you will begin to understand what commercial litigation means and what kinds of legal issues you could deal with yourself.

There are three tiers of commercial litigation: Top-tier, Mid-tier, and Entry-tier.

Top-tier

On the top tier are the big banks and the top 100 ASX companies paying the mega law firms thousands of dollars per hour to engage in a veritable boxing match. It is highly important litigation as it often ends up before Courts of Appeal, if not the High Court of Australia. The decisions of these Superior Courts form the very heart of Australia’s doctrine of precedent, ‘judge-made’ law.

Mid-tier

On the next tier are the David and Goliath struggles. Again, the protagonists are often big banks and the top 100 ASX companies. The dramatis personae could also include the Australian Tax Office (ATO) or the Australian Competition & Consumer Commission (ACCC)). Poor old Mr. Widget or Widget Pty Ltd really face the prospect of going to the wall. The mega law firms, for client Goliath, are ranged against much smaller firms, for the smaller client.

Surely the Goliath’s will do a cost/benefit analysis of funding each step of the litigation? Wrong. Disabuse yourself of this notion immediately. The Goliath’s have very deep pockets and implicitly understand that the contrary applies to Mr. Widget or Widget Pty Ltd. Put simply, it is a war of financial attrition. They go for broke – literally. To use a sporting analogy: who would you back in a Rugby international between the Springboks and Japan? (Well there was that 2015 Rugby World Cup upset).

You will lose unless your lawyer can skillfully extricate you through alternative dispute resolution.

Entry-tier

This is Mr. Widget or Widget Pty Ltd verse Mr. Gadget or Gadget Pty Ltd in all levels of Courts but particularly inferior Courts of record such as Magistrates Courts, the District Court and tribunal such as QCAT.

How does commercial litigation work?

In procedural law, disputed points are all those aspects on which there is a controversy between the parties and concerning which the court must resolve.

Thus, when two opposing parties (for example, due to an inheritance, a divorce, a lawsuit, etc.) They go to a dispute seeking a judicial resolution. In this way, it will be the Judge who solves the conflict utilizing a sentence. However, before deciding to initiate a dispute, it is advisable to reflect on a prior agreement’s viability since the dispute’s outcome can have severe consequences for the parties (especially for the losing party).

The litigation process follows several steps. First, the plaintiff files a complaint to take a case to court. The defendant receives a summons. The subpoena notifies the defendant of the plaintiff’s action and sets a deadline for the response. The first part of litigation is the discovery process, where the parties collect records, documentation, and other pertinent information.

The court can set a trial at this time. Parties can file motions in court, which can be used for a variety of reasons. Some activities are procedural, which means that a party requests some aspect of the court process. Some motions are substantive and refer to specific facts or laws of the case. At the trial, the Judge or a jury decides by hearing the case. If the decision is contested by one of the parties for good reason, they can appeal the case to a higher court.

Sometimes parties prefer to resolve disputes outside of the courtroom. One option is arbitration. A referee listens to both sides of the conflict and makes a decision. Arbitration is a private process that never goes to court. Unlike commercial litigation lawyers in Brisbane by litigation, an arbitrator’s decision cannot be appealed.

Can Aylward Game Help?

• Top-tier? No;
• Mid-tier? Yes.

In recent times Aylward Game has been on the record in litigation in Superior Courts in matters as diverse as:

• Assignment of proprietary interests in commercial litigation;
• Contentious discovery and disclosure issues in fiduciary relationships;
• Unfair preferential dividends in corporate insolvencies;
• Unconscionable conduct in trade or commerce;
• Entry-tier and mid-tier is no problem.

COMMERCIAL LITIGATION SERVICES

Debt collections, Corporate and Personal Insolvencies are our bread & butter.

We can assist you with breaking leases, body corporate disputes, breach of trust disputes and estate litigation.

Engage in Alternative Dispute Resolution (ADR) – Do not hide from your creditors: talk with them.

A vital part of commercial litigation is the negotiation /mediation /Alternative Dispute Resolution mosaic.

At the end of the day most litigation boils down to cold hard cash (or lack thereof).

Many a creditors petition for bankruptcy has been withdrawn on the basis of successful negotiations to pay a lesser (but still fair) sum in dispute. For example, many creditors would prefer to accept 50% of debt than proceed to bankruptcy.

On a more formalized level a bankruptcy may be avoided by what is known as a Part 9 or Part 10 agreement. (Similar agreements apply in corporate insolvencies).
Be forewarned – litigation like surgery is a last resort!!

Franchise Agreements

There are not enough entrepreneurs in Australia. Get out and have a go.

Allied commercial /business law issues

Also, attendant to having your own business is diverse issues (and for each of these issues are legal issues that fit like a hand into a glove) for instance:

• Franchising / Licence agreements;
• Premises: negotiating a lease;
• Insurance;
• Cash flow, Rent, wages and utilities go out each and every week. Do funds come in at the same frequency;
• Do you sell your invoices to factoring agents?
• Contractual relationships with suppliers and customers;
• Intellectual property: do you or your staff on this?
• Hiring / Firing staff;
• Staff embezzlement investigations;
• Taxation;
• Protecting your personal assets if your business fails. Would you be better off being a sole trader, such as Mr. Widget, or a company Widget Pty Ltd;
• If your business fails, how do you extricate yourself from the fallout;
• Succession plans for your business. What happens if you become seriously ill or worse? Do you entrust your business to your buffoon son or a trusted business adviser?

BUSINESS MEDIATION

Because of the impact of business disputes, they can be time-sensitive. This makes it crucial to receive precise and immediate advice on all issues in relation to the legal dispute, including possible outcomes.
Disputes are a part of business, and having a lawyer to call when these disputes happen is important to the survival and prosperity of your business.
At Aylward Game, we regularly deal with these issues on both a Transactional Basis and/or Litigation basis.

Aylward Game Solicitors, keeping you ahead of the game.

Article Source: Commercial litigation