FEATURED ITEMS

Time to review your legal documents?

By Geoff Reeve, Partner

Now may be a good time to review your Will to make sure it reflects your current circumstances and wishes.

The appointment of the Executors and current status of beneficiaries should be checked and your Will updated if circumstances or relationships have changed.

Remember you should destroy copies of earlier Wills and advise your Executors where your current Will is stored. We recommend that we hold the original of your Will in our strongroom for safekeeping. We do not charge for this service.

You should also regularly review your Powers of Attorney, both Financial and Medical Treatment. You may also wish to consider the appointment of Guardian who can make personal and lifestyle decisions on your behalf, such as where you live and who visits you, in the event of you losing capacity to make those decisions yourself.

It is wise, also, to review your insurance policies that cover you and your property. Circumstances may have changed and your insurance cover may require more detailed examination than just signing the renewal form and paying the premium when due.

It will help your family members and Executors if you prepare a list of your important documents and where they are kept. Here is a handy checklist of the kind of documents you need to copy and store:

Will, birth certificate, passport, marriage certificate, powers of attorney, land and or house title, mortgage papers, rental/leasing documents for home or business rentals, current insurance policies and contact details, superannuation and investment details, employment contract, business papers, tax file number, Medicare number, health insurance fund number and bank and credit card numbers.

For more information please call Whyte Just & Moore on 03 5222 2077.
 

Buying Off-The-Plan - a Potential Hazard

By Matthew Kinross-Smith, Partner

Did I receive exactly what I thought I'd receive?

Purchasers of land (and sometimes buildings) "off-the-plan" buy a depiction of a work in progress. These are purchases based on a Plan of Subdivision and possibly a building plan but where construction has often not even commenced for roads or other infrastructure let alone the buildings.

Off-the-plan sales contracts contain all sorts of provisions allowing a Vendor to adjust/alter the depictions of the end result before the Contract is completed. Easements may be created/shifted, new agreements entered with Government authorities, access points for services moved, variations to the plan changing the size, location of Lots including the relative location accessory Lots.

The law has a variety of tests which may apply to determine whether a buyer is stuck with those changes, whether compensation may apply or whether the buyer can elect to terminate the Contract altogether.

The key tests are whether the proposed changes will "materially affect" the Lot, if there is a "substantial discrepancy with the boundaries of the Lot" - both very subjective tests. If the change in the plan "restricts or limits the use of the Lot" the purchaser may be able to end the contract. Ordinary misrepresentation and Trade Practices Act "misleading and deceptive conduct" principles may also apply to allow either compensation or termination of the Contract.

Vendors/Developers have an obligation to notify of changes affecting a Lot and the buyers have often a limited period of time within which to decide whether to object to proceeding with the Contract. Under some sections of the Sale of Land Act, a Purchaser must make a decision within 14 days of being notified in writing of the proposed change.

"Off-the-plan" purchasers need to seek advice on the detailed provisions in their contracts and be aware that some changes to the depiction of the end result provided in the contract may not entitle them to end a contract or, in some circumstances, even to compensation.

For more information please call Whyte Just & Moore on 03 5222 2077.

Fair Work Australia - Employment

By Matthew Kinross-Smith, Partner

Post January 2010 the Commonwealth Government "Forward with Fairness" policy has been implemented through the Fair Work Act ("the Act") and the Modern Awards developed under it.

There are now 110 Modern Awards covering all employees (with some minor exceptions eg Government employees and those under agreements surviving the transition to Forward with Fairness) in Australia earning less than $108,300.00. The National Employment Standards (NES) apply to all employment covered by the Act and therefore covers virtually all small business employment in Australia for employees on less than $108,300.00.

Employers need to reconsider the way they are paying their employees to ensure that they are meeting the new Modern Awards and NES standards applying to their employees. There may be more than one Modern Award per employer to comply with. For example, administrative staff may be under a different award than non administrative staff. There are likely to be preserved pay rates from old arrangements if the Modern Award rate hourly rate is lower.

Modern Awards were gathered together quickly. There had been over 24,000 Awards Australia wide previously comprising various State and Commonwealth Awards. Whilst many Awards had a great deal in common, there were sometimes significant variations between them. It is therefore possible that the Modern Awards could have significant differences to the previous Awards and payment arrangements that employers had.

Employment law is an area that people tend to look at in extremis (i.e. when there is a dispute). There can be some nasty surprises in store if an employee brings a claim that has merit due to even technical non compliance with a Modern Award or the NES.

The new Forward with Fairness policy regime is, more so than in the past, enforced by the Commonwealth Government bureaucracy. $130 million has been put aside to prosecute breaches and investigate complaints. Checking the validity of your current arrangements and the records you keep is well worthwhile. Fines for an offence could range up to $33,000.00. 

For more information please call Whyte Just & Moore on 03 5222 2077.

Back to top