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Articles By james mark

Legal Advice - Clarifying The Facts   By: james mark
Making sure that your business documents are all in order is vitally important for any business, particularly if you are trading with international partners across the globe. At Net Lawman, we make sure that you get the best legal advice and legal information that’s relevant to you – and your customers. A worldwide knowledge base The international language of business is still English. But business documents can become weighed down with legal jargon that at best is meaningless in other countries, and at worst could put your business at risk. Which is why we make sure that all our legal advice is in clear, easy to understand and jargon-free English, so that there’s no misunderstandings. Not only do we provide you with the best legal advice from our experts, but we can also help you to take control of your business documents by using our easy to understand templates, allowing you to create legally binding documents that are applicable across the globe. Understanding what our customers want is what drives Net Lawman. We know you don’t want to wade through red tape and unintelligible documents that, when you read the fine print, have no bearing on your business circumstances. So we make sure our information is clear, no-nonsense and understandable to everyone – you don’t need a law degree to talk to Net Lawman. Your legal partners Our legal experts don’t just understand the law; they understand business too. This gives us an advantage over other legal advice services and means that we give you clear, concise and accurate legal information on all aspects of national and international business, including how to create business documents that will protect your interests both at home and abroad. So if you would like to find out how Net Lawman can help you, if you need help creating effective business documents or want legal advice that’s easy to understand, contact us direct and speak to one of our expert advisors. Alternatively, browse our website for further information on all Net Lawman services.(read entire article)
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Category : Legal

Business Structures - Trusts Ins And Outs   By: james mark
This article is useful reading for anyone wishing to set up a company, buying or selling a company. Net Lawman hosts a further two articles on ‘business structures’. These are: Companies: ins and outs. Partnerships: ins and outs. Introduction to trusts: A trust is a relationship or association between two or more persons whereby one party holds property on trust for the other. The property could be land, shares, money or personal property. The first party is vested with property. The holder of the property is called the trustee. The other party (for whom the property is held) is called the beneficiary. Trusts may be made expressly in writing or implied from the circumstances. A company, for example, may trade as trustee of a trust. Accounting and records: Trusts and companies have two different accounting and reporting requirements. The main reason for a trust to keep accounting records is for taxation purposes. Trusts allow for a great deal of flexibility in the distribution of funds and allocating of losses. The way funds are distributed and to whom should be clearly recorded for income tax purposes. Any losses should also be properly recorded for tax deduction purposes. Contracting: Trusts enter into agreement via the trustee. However, a trustee may only enter into an agreement on behalf of a trust if the trustee has the power to do so under the trust deed. When entering into an agreement, it is important to ensure that a trustee has the power to enter into an agreement and thereby bind the trust. Obligations and powers of trustees: The primary obligation of a trustee is to act in the best interests of the beneficiary or beneficiaries under the trust. Sometimes the trust deed will specify other duties and obligations on trustees. Certain powers are also normally given to trustees under the trust deed. Federal legislation allows trustees to: • Invest proceeds of the trust; • Sell, mortgage or lease trust property; • Take out insurance; and Give advances to beneficiaries out of trust property. Whether these or any other powers are available to a trustee will depend on the type of trust and the provisions within the trust document. Rights of beneficiaries: A beneficiary is the person who benefits from the trust. This might be a grandchild for example, if a grandparent left them money on their death. A beneficiary has the right to compel a trustee to obey the terms of the trust deed – it is in the beneficiary’s best interests. If a trust is discretionary - that is, it allows trustees to exercise their own judgment in dealing with trust property - a beneficiary can compel a trustee to act with reasonable care. Once a beneficiary becomes entitled to a share in the trust property, the trustee must pay them their entitlement. The trust deed may provide additional rights for beneficiaries. Setting up and terminating a trust: A trust is set up when a person decides to put aside some property for the benefit of another person. The property may be anything, for example money, land or a business. Trusts do not need to be in writing but usually are. The document which records the trust is called the trust deed. The trust deed will record necessary details such as those of the trustees, beneficiaries and the property under the trust. A trust ends when its purpose is fulfilled, that is the trust property is completely used up for the benefit of the beneficiaries. Alternatively, a trust can be terminated by the person who set up the trust. Often the trust deed will set out the circumstances in which a trust terminates. Tax issues: Tax on trusts is determined according to ""present entitlement"". Simply put, for any income which is received by the trust, if the beneficiary or beneficiaries are entitled to receive that income, they will be taxed on it. If they are not entitled to receive the income then the trustee is taxed. There are further tax rules which apply to incorporated trusts. Net Lawman advises you should be aware of the effect the Goods and Services Tax may have.(read entire article)
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Category : Animal and Pet

How To Form A Company   By: james mark
Introduction: This article explains the basic steps to take when setting up a new company in Australia. Although each state has small discrepancies, the basic procedure, outlined below, is the same. There are many company structures in Australia – the most commonly chosen is the ‘proprietary company’. These are denoted by the words “Pty Limited” or “Pty Ltd”. To help you differentiate, here are the major differences between public and proprietary companies are: • Proprietary companies must have at least 1 shareholder but no more than 50 non-employee shareholders. Public companies must also have at least 1 shareholder, however, there is no limit on the number of shareholders; • Proprietary companies must have at least 1 director who must ordinarily be resident in Australia. Conversely, public companies must have at least 3 directors – 2 of whom must ordinarily be residents in Australia; • Proprietary companies cannot engage in any activity that would require the lodgement of a prospectus (except for an offer of shares to existing shareholders or employees); and • Proprietary companies are not required to appoint an auditor. 1. Registration: A company is a legal entity which is born when it is registered with the Australian Securities and Investments Commission (ASIC). In the eyes of the law, it is treated as an individual, separate from the existence of its directors, employees and so on. Thus, a company has the power to own and dispose of property, sue and be sued, and enter into contracts. The name: Choose a name and ensure it is available and suitable for registration by searching the ASIC’s name database. A company name must indicate the company’s legal status. So a proprietary company must include the word “Proprietary” or the abbreviation “Pty” in its name. Although you might be taken by a particularly quirky name, some words and names cannot be used in company names without Ministerial approval. These include words such as “building society”, “trust”, “university”, “chamber of commerce” and “chartered”, as well as words suggesting a misleading connection with Government, the “Royal Family” or the Sydney 2000 Olympics. The aim of such restrictions is to ensure that a company’s name does not mislead as to the company’s activity or purpose. ASIC may also refuse to register names which are offensive or suggestive of illegal activity. Reserve a company name: If you thought of a name last year but have only just gotten around to starting the company, for whatever reason, you probably didn’t realise that you can ensure that the name cannot be taken by another company until you are ready to register it. To reserve the name, you simply complete and lodge ASIC form 410 – Application for reservation of a name, with the prescribed fee (currently $35). If the application is approved, the name will be reserved for a period of two months. The application will approve unless the name is: • Identical to a name reserved or registered for another corporation or a name already listed on the national business names register; or • Unsuitable for the reasons above. Using your ACN as a company name: If you prefer no name, you can nominate the CAN as the name For example, your company name would be known as “000 111 222 Pty Limited”. In this case you do not need to complete or lodge form 410 or nominate a name on form 201, simply tick the appropriate boxes on the form 201 as required. 2, Choose a “constitution” or “replaceable rules” A company’s internal management may be governed by either: • Provisions contained in the Corporations Law known as “Replaceable Rules”; • Or a Constitution (formerly Articles of Association); • Or a combination of both. Companies are not required to have a separate constitution (formerly Articles of Association). Companies can simply take advantage of the replaceable rules contained in the Corporations Law as a means of internal governance. A company will only need a constitution if it wants to displace, modify or add to replaceable rules. For the sake of simplicity in the future, Net Lawman recommends you do draw up a constitution as it ensures your company is governed by rules chosen by you and the shareholders and may save time in the future should you need to change the rules swiftly for whatever reason. Note: replaceable rules do not apply to a proprietary company while the same person is both its sole director and sole shareholder. Benefits of a constitution: A company’s constitution has the effect of a contract between the company and each member, between the company and each director and secretary, and between a member and each other member. If you choose a constitution come registration time, each person specified in the application must agree in writing to the terms of the constitution before the application is lodged. Simply – they sign the document. A company may modify or repeal its constitution by passing a special resolution, that is, a resolution passed by at least 75% of the votes cast by shareholders entitled to vote on the resolution. Replaceable Rules: A table of replaceable rules can be found in section 141 of the Corporations Act 2001. The table indicates the subject of the rule and the relevant section of the Corporations Law that covers each rule. We suggest you print the rules that are relevant to your company and distribute them to the members so that everyone knows what is expected of the company. 3. Consent from members, directors and secretaries: A proprietary company must appoint at least one director and one secretary both of who must live in Australia. Written consent is required for each person who agrees to become a director of a company. The same person may act as director and secretary. To be eligible for directorship, a person must not: • Be under 18 years old; • Be insolvent under administration; • Have been convicted of any serious offences as specified in the Corporations Act 2001; or • Be banned by a court or ASIC from managing a corporation. Note: the written consents are not lodged with the registration application. However, the applicant for the registration must have the relevant consents when the application is lodged with ASIC and must give the consents to the company after the company becomes registered. Consents must be kept with the company’s records and directors and members details must be kept and recorded with the register of members. 4. Complete and lodge the application form: Once the relevant consents have been obtained then you must complete and lodge ASIC form 201 – Application for registration as a company together with the prescribed fee, currently $720. Do not lodge the consents with ASIC. These must be kept with the company’s records. The completed ASIC form 201 can be lodged in person at any ASIC Business Centre. The ASIC form will require the applicant to state: • The proposed company name, or ACN number; • The class and type of company; • The registered office details; • The principal business office details; • Director(s) details; • Secretary details; • Member(s) details; and • Details of shares. The completed application form must be signed by the applicant who can be either an individual or company. Australian Company Number (ACN): When a company is registered with ASIC it obtains an Australian Company Number (or ACN). An ACN is a unique 9 digit number allocated by ASIC to each company. A proprietary company must also have the words “Pty Limited” as part of its name, which can be abbreviated to “Pty Ltd”. A proprietary company must legibly display its company name and its ACN on: • Every public document issued, signed, or published by or on behalf of the company; • Every negotiable instruments (for example cheques and promissory notes) signed by or on behalf of the company; • All documents lodged with ASIC; and • The common seal (if the company has a common seal). Registered office: As stated above, each company must have a registered office in Australia where communications can be sent and where the secretary or its agent is present. On registration the address specified in the application becomes the address of the registered office. A company must usually keep its company register at the registered office. Minutes of meeting: A company resolution is a formal expression of a decision made in a meeting of company directors or members. Resolutions and company meetings are recorded in the company register in the Minutes of Meeting. Share register: A company share register must be kept at the registered office. A share register must be kept for each shareholder of the company.(read entire article)
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Category : Legal

Enduring Powers Of Attorney In Australia   By: james mark
What is an enduring power of attorney? An enduring power of attorney is a legal document which you can use to appoint a person to make decisions about your property or financial affairs should you lose mental capacity. The person who makes an enduring power of attorney is known as ‘the principal'. The person who you appoint to make decisions for you is known as ‘the attorney'. The general principles of Powers of Attorney are the same Australia wide. Different pieces of legislation govern the precise rules in each State, however, they are easily summarised in one article. Why make an enduring power of attorney: By making an enduring power of attorney, you are choosing who you want to manage your financial affairs should you lose the mental capacity to do this for yourself. If you do not have an enduring power of attorney and you lose mental capacity, there may be no one with legal authority to manage your financial affairs. This may mean that the Guardianship Tribunal or the Supreme Court will need to appoint a financial manager for you. This may or may not be the same person you might have appointed, had you chosen earlier. ‘General' power of attorney or ‘Enduring' power of attorney: A general power of attorney ceases to have effect after you lose the mental capacity to make financial decisions. It is most suitable where you may be away or unavailable for extended periods – for example, in hospital or on holiday. An enduring power of attorney will continue even after you lose mental capacity (for example, if you develop dementia, have a stroke or sustain a brain injury in a car accident). You can make an Enduring Power of Attorney at any time, in preparation for the future. Attorney’s control of decisions: The attorney can make decisions about your property or financial affairs. This means that they can operate your bank accounts, pay your bills, and sell or buy property (such as your house or shares) on your behalf. An enduring power of attorney cannot be used to make medical or lifestyle decisions for you. However, you can appoint an enduring guardian to make these decisions. The Guardianship Office in your State can give you information about enduring guardianship. Am I eligible to make an EPoA? Anyone can make an enduring power of attorney if they have the mental capacity to understand the nature and effect of the power of attorney. People of any age (not just older people) can make an enduring power of attorney. It acts as a safeguard. Capacity required: To make a valid enduring power of attorney, the person making it must have mental capacity when they sign the document. At that time, the person must be capable of understanding the nature and effect of the enduring power of attorney. They must be capable of understanding the range of decisions which the attorney can make on their behalf. They should also understand that the attorney can make decisions without consulting them. If it is not clear if a person has the required mental capacity to make an enduring power of attorney, it is best to seek advice from a GP or specialist (such as a neuropsychologist or geriatrician) before the enduring power of attorney is made. Choice of attorney: An attorney can have enormous power over your financial affairs. You should choose an attorney whom you trust and who will manage your finances in a responsible way. If your financial affairs are complicated, you should appoint an attorney who has the skills to deal with complex financial arrangements. You may wish to appoint a family member or a close friend as your attorney. You can also appoint the Public Trustee or a trustee company but fees will apply. You should contact these organisations for more information. Be careful however – if you choose someone the same age as you, there is a higher chance of them becoming incapable soon after you, than if you appoint someone much younger. You can appoint more than one attorney. When appointing more than one attorney, you should choose people who can cooperate with each other and who you trust to work together in your best interests. You can appoint your attorneys to act: • jointly and severally (this means that the attorneys can make decisions together or separately), • severally (this means that any one of the attorneys can make decisions independently of the other attorneys), • jointly (the attorneys must agree on all decisions). What if one of my attorneys dies or cannot continue for some reason? Your power of attorney may be affected if one of your attorneys dies or cannot continue in their role. This depends on how you appointed the attorneys. If you appointed them to act jointly and one of them is no longer willing or able to carry out their duties, then this will automatically end the enduring power of attorney. However, if you appointed your attorneys to act jointly and severally or severally then the enduring power of attorney will continue, even when one of them can no longer act. The remaining attorneys can keep making decisions for you. Attorney’s powers: You can give your attorney the power to make any decision or do anything about your finances or property which you could do yourself. These broad powers include selling, buying or leasing property (such as your house), making investments, accessing cash (including bank accounts) and buying or selling shares. You can control the power you give to the attorney by placing limits or conditions in the enduring power of attorney. For example, you can give the attorney limited authority to do specific tasks, such as paying regular bills but not selling property. If you wish to limit your attorney's powers you should seek legal advice about the best way to do this. Duties and responsibilities of an attorney: An attorney is in an important position of trust. The attorney is legally responsible to you and must: • always act only in your best interests; • avoid doing anything as an attorney which would mean that their interests conflict with your interests; • obey your instructions while you are mentally capable and any directions you make in the enduring power of attorney; • act according to any limits or conditions placed on their authority; • not give gifts or give themselves or others a benefit using your finances unless you specifically authorise this; • keep their finances and money separate from yours; • keep accurate and proper records of their dealings with your finances or property. If your attorney abuses their position of trust, legal action can be taken to protect your interests. When does an enduring power of attorney start? You can choose when you would like your enduring power of attorney to start. You may want the enduring power of attorney to start immediately after you appoint the attorney or at some future date. When you make an enduring power of attorney, you should make it clear when you want it to start. If you do not make this clear, then the enduring power of attorney will start when the attorney accepts the appointment by signing the enduring power of attorney. When does an enduring power of attorney end? An enduring power of attorney ends: • when you revoke it (so long as you have mental capacity at that time); • on your death; • when you have only appointed one attorney and that attorney dies or can no longer act as your attorney; • When you have appointed two or more attorneys to act jointly and one of them dies or can no longer act as your attorney. The enduring power of attorney may also end for more complex legal reasons such as bankruptcy. You should seek legal advice about these matters. If your enduring power of attorney has ended and you no longer have the mental capacity to make a new one, the Guardianship Tribunal may be able to make orders so the enduring power of attorney can continue. For example, if your enduring power of attorney has ended because a jointly appointed attorney has died, the Tribunal has the power to reinstate the enduring power of attorney so that it can continue in your best interests. How do I make an enduring power of attorney? Net Lawman supply forms for every state. Witnesses: An enduring power of attorney must include a witness's certificate completed and signed by an appropriate witness. The witness must be present when you sign your enduring power of attorney. The only witnesses who can witness your signature on an enduring power of attorney and complete the certificate are: • an Australian solicitor or barrister • a registrar of a state Local Court • a licensed conveyance or an employee of the Public Trustee/private trustee company who has completed an approved course • A qualified overseas lawyer. Your enduring power of attorney cannot be witnessed by someone who you are also appointing as your attorney (for example if you are appointing your solicitor as your attorney then he or she cannot also be your witness). Registration: If your attorney needs to use the enduring power of attorney to deal with any real estate you own in your state, then, in most cases, the enduring power of attorney must be registered with Land and Property Services. There is a fee charged for registering an enduring power of attorney. Even if there is no requirement to register the enduring power of attorney, you may choose to do so because that means the enduring power of attorney: • will be on record as a public document; • will be kept safe from loss or destruction; • May be more easily accepted as evidence that your attorney has authority to deal with your property or financial affairs. After registration, your original enduring power of attorney will be returned to you with a registration number stamped on it. Your attorney should use this number when signing any documents on your behalf. Revocation: You can revoke your enduring power of attorney at any time so long as you have mental capacity to understand what you are doing when you revoke it. You should notify the attorney(s) that you have revoked the enduring power of attorney either by telling them or in writing. It is clearer for everyone if you revoke the enduring power of attorney in writing, especially if it is registered at Land and Property Services office. If you do not tell the attorney about the revocation, the attorney can keep dealing with your finances and property. After revocation, you should destroy the original and any copies of the enduring power of attorney. You can purchase a deed of revocation from Net Lawman. Can an interstate enduring power of attorney be used in another state? Yes. If an enduring power of attorney was made in another Australian state or territory then it is generally automatically recognised in any other state. This does not apply to enduring powers of attorney which are made overseas. What is the Guardianship Tribunal's role in relation to enduring powers of attorney? If there is a problem with how the enduring power of attorney is working, an application can be made to the Guardianship Tribunal or the Supreme Court for a review of the enduring power of attorney. The Guardianship Tribunal and the Supreme Court have the power to make a wide range of orders about enduring powers of attorney. For example, the Guardianship Tribunal could order the replacement of an appointed attorney if it was satisfied the attorney is not acting in the best interests of the person who appointed them. You should seek legal advice if you are considering this and explore other options of resolving the problem. You can also contact the Guardianship Tribunal for information and brochures about reviews of enduring powers of attorney. After the form is completed there is no requirement to formally lodge it anywhere unless the attorney needs to deal with land. Keep the completed appointment form in a safe place. Tell someone else where it is. Give a copy to your appointed attorney(s).(read entire article)
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Category : Legal

Statutory Demand Procedure   By: james mark
Does a company owe you money? The first thing to do is write them a Letter of Demand requesting payment. If your letter is ignored or your demand refuted, you then have the option of taking the party to court. This is done by filing a Summons (or Statement of Claim or Statutory Demand) in the relevant court. It is very important to word a Letter of Demand correctly to ensure that it is descriptive, effective and 'technically' acceptable by the court. However, by including a Summons with your Letter of Demand, you will let them know that you are serious about your claim and that you are prepared to take the matter to court if they don't do as you ask. There is nothing, but nothing that concentrates someone’s mind more than prospective wipe out. Of course, if you have done your homework, you never need to issue the petition. The reason why a Letter of Demand is so powerful is that the mere issue of a summons, no matter how easily dismissed triggers a domino effect on borrowing and many other agreements. The usual words in any legal agreement, which entitles a party to avoid the agreement often, refer to the issue of a summons rather than an order for winding up. So your enthusiastic debt collection really could wipe out the largest of companies. It used to be difficult for a third party to know about your summons. The Internet has changed all that. If you publish a copy of a summons in the right place, and tell a few banks for good measure, you are spelling disaster for someone. The law assumes that a Letter of Demand merely paves the way for a summons. But it can be an incredibly powerful debt-collecting device without you even setting eyes on a summons. What is more, the procedure is very easy to follow. All you need are a couple of forms and a stamp; no solicitors, no court fees. What is a Summons / Statutory Demand? Section 9 of the Corporations Law defines a Statutory Demand as: • A document that is or purports to be a demand served under Section 459E of the Corporations Law; • Section 459E provides that a creditor may serve on a company a statutory demand for a single debt that is due and payable by the company to the creditor or two (2) or more debts due and payable by the company, the total of which must exceed $2,000. When can I use a Statutory Demand? • After you have obtained default judgment; or, • Before you commence proceedings by way of Statement of Liquidated Claim. NB: Only use Statutory Demand to commence proceedings where you are ABSOLUTELY SURE that there is NO possibility of a dispute of whether the debtor owes you the money. What must a Statutory Demand show? • Specify the debt and its amount or if there is more than one debt, the total amount of all debts. • It must relate to a debt or debts which are due and payable at the date of the demand. NB: They cannot relate to contingent, prospective liabilities or un-liquidated damages: • It must demand the company to pay the amount of the debt or total amount of debts within twenty one (21) days after the demand is served or secure the payment of the debt or debts within a reasonable time. • It must be in writing; • It must be in the prescribed form; • It must be signed by the creditor or on behalf of the creditor How to avoid the traps • Be careful of the manner in which you stipulate the amount of the debt, in particular the way interest is claimed; • you must state in paragraph (1) of the form the amount of the debt and the interest due as at the date of the Statutory Demand in one figure; • The Court will declare a Statutory Demand as defective, if you state the amount as follows: • ""$179,722.73 together with interest from 11 March 1993 to date and continuing • being the amount of the debt in the Schedule.""; • Where there are two or more debts, the Court are undecided if a total amount of the individual debts should be specified. You should identify each individual debt and its amount and the total of the debts be inserted into the Statutory Demand to eliminate the possibility of challenge; • Form 509H must be signed by the Creditor and/or the Creditor's solicitor; • A Statutory Demand must be accompanied by an Affidavit Supporting Statutory Demand where there is no judgment. Avoid Affidavit traps • Supply the correct information required on the Affidavit; • Make sure you swear it correctly; • The existence of a dispute will result in the Statutory Demand being set aside. • The Affidavit not in the prescribed form: Form 154FA; • It must refer to the parties as debtor or creditor; • It must contain important Notice on the bottom of Affidavit; • It must not have a Court proceedings title or number. (This is because Court proceedings have not been commenced yet.). Service of a Statutory Demand • The Statutory Demand must be served on the registered office of the company (you must do an Australian Securities Commission's Search); • You cannot serve a Statutory Demand on a foreign company as separate procedures are in place to wind up foreign companies. Why do creditors not use it more often? The procedure is steeped in history. Even the name is enough to put off a layman. People assume they need a solicitor: • The requirements for a statutory demand are set by statute and they have to be followed carefully, however, they are not complicated; • There is a small fee on a summons and you may not issue for a debt of less than $2,000, so don't issue a statutory demand for a small sum. Although you hope you will never need to issue a petition, if you chase a small sum, the statutory demand is toothless, for your debtor knows you cannot take the procedure further. Furthermore, he may calculate that you are unlikely to throw good money after bad if the debt is not a million miles from the cost; • Your creditor has to have the money; • You cannot threaten to wipe out then expect your customer to come back tomorrow to buy more of your goods or services. Of course, the same applies to a court claim; • If you get it wrong, it may be you who are wiped out! When do you use a statutory demand? Use it when: • You are chasing more than $2,000; • You are absolutely certain that they owe you the money - every penny of it and the debt is crystallized. That means you do not need to ask a judge to calculate how much money is due to you; • Your debtor has the money; • You calculate that your debtor will pay rather than risk your issuing a petition. This depends of course on his perception of you; • You are prepared to follow up by issuing a petition. You hope that might never be necessary. But, as in any litigation, hesitation comes through in your tactics. You lose the impact completely if you are seen to be bluffing. Corporate debtor • The statutory demand must state the amount of the debt and the consideration for it (or, if there is no consideration, the way in which it arises); • Any charge by way of interest not previously notified to the company as included in its liability, or; • Any other charge accruing from time to time; • If the amount claimed in the demand includes: The amount or rate of the charge must be separately identified, and the ground on which payment of it is claimed must be stated. In either case the amount claimed must be limited to that which has accrued due at the date of the demand. Proof of service of statutory demand: • Where the petition must have been preceded by a statutory demand, there must be filed in court, with the petition, an affidavit [or affidavits] proving service of the demand; • The affidavit must have exhibited (attached) to it a copy of the demand as served; • Subject to the next paragraph, if the demand has been served personally on the debtor, the affidavit must be made by the person who effected that service; • If service of the demand (however effected) has been acknowledged in writing either by the debtor himself, or by some person stating himself in the acknowledgement to be authorised to accept service on the debtor's behalf, the affidavit must be made either by the creditor or by a person acting on his behalf, and the acknowledgement of service must be exhibited to the affidavit; • The steps of which particulars are given for the above purposes must be such as would have sufficed to justify an order for substituted service of a petition; • If the affidavit specifies a date for the purposes of compliance with sub paragraph (c), above, then unless the court otherwise orders, that date is deemed for the purposes of the Rules to have been the date on which the statutory demand was served on the debtor. Conclusion provided you are certain that the debt is contractually due and your debtor has the money, go for it. A statutory demand works best with people who do have money and reputation but are simply too arrogant or autocratic or bureaucratic to pay you. Use it against major plcs or someone with a reputation to protect, where they simply cannot afford even to consider whether you are serious. You will be happily surprised how quickly a cheque arrives on your doormat.(read entire article)
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Category : Legal

Australian Workplace Agreements - Younger Employees   By: james mark
Introduction: This article will be useful reading for all employers of younger workers as well as parents / guardians of such employees and the employees themselves. Australian Workplace Agreements are in force for an ever increasing number of individuals. While the employer can choose to opt out of a workplace agreement, and simply choose a general agreement, governed by common law principles rather than statue, many do not. There are special rules for employing younger employees on AWAs. This article explains the law so you stay the right side of it. Written adult consent: Just like any contract, signing it means accepting the terms within in. However, if the employee is under 18 years of age, his or her AWA must also be countersigned by an appropriate person (such as a parent or guardian – of course this can’t be the employer who is party to the AWA). If the AWA is not countersigned by an appropriate adult, the requirements for approval will not have been met. This has the effect of there being no contract. Bargaining agents: Any employee is able to appoint a bargaining agent to help them to negotiate an AWA. Of course the younger the employee, the more sensible it is to appoint a bargaining agent. Anyone may be a bargaining agent as long as they meet certain requirements which are that they must not be: • Under 18 years of age; • Acting for the other party to the AWA; • Bankrupt; or • Convicted of certain criminal offences. Thus, the bargaining agent could be a parent, family member, friend, trade union representative or any other person. To be a valid agent, the employee must appoint the bargaining agent in writing and give a copy of the appointment document to the employer before agreement negotiations begin. Of course while a bargaining agent may be useful, it is unlikely that a contract for an under 18 will be significantly complex enough to warrant calculated negotiations on behalf of either party, however, it is useful for the younger employee if the bargaining agent thoroughly reads through the contract to ensure that all the terms seem fair and reasonable. An employee cannot be sacked for refusing to negotiate, make, sign, extend, vary or terminate an AWA. Unlawful termination: The unlawful termination provisions of the Workplace Relations Act prohibit dismissal on a range of grounds including age. Thus, an employee cannot be dismissed because the employer thinks they are too young (or too old). Unlawful termination (which is different from unfair dismissal) applies to all employees in Australia, irrespective of the size and type of the business. Remuneration for younger employees: The Australian Fair Pay Commission (Fair Pay Commission) is responsible for setting and adjusting minimum wages, including minimum wages for juniors. The Fair Pay Commission must have regard to ensuring that junior employees are ‘competitive in the labour market’ when setting and adjusting their minimum wages. The Fair Pay Commission will also be able to determine one or more special Federal Minimum Wages (special FMWs) for particular groups of junior employees. As the rates change annually, we have not specified them here. Assistance: The Office of the Employment Advocate (OEA) provides a free service for employees to explain the contents of workplace agreements and AWAs. The OEA takes into account the circumstances of the particular employees, thus, if they are young, they will explain the terms of the AWA so that the employee can easily understand their responsibilities and rights.(read entire article)
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Category : Legal

Which Terms And Conditions Template   By: james mark
Why a terms and conditions document? Everyone knows that terms and conditions are critical. They govern the relationship between you and your customer. Much general law applies to the rules when making contracts with businesses and consumers. Further, if you operate via a website or from a distance, there are further regulations you must comply with. Choosing the right document is therefore essential. How to choose: The Net Lawman documents have been divided not according to what you sell, but according to whether your customer is a consumer or business; and whether you sell goods or services, or both. We have further provided for traders who have only a modest Internet presence and traders who take money on their website. Start by looking at your customers. The law provides far greater protection to “consumers” than the business buyers. A consumer is anyone who is not buying in the course of a business. The “consumer” versions provide that the consumer protection law relates only to consumers, so if you sell to both consumers and to businesses, you can use the “consumer” version for all your customers without giving anything away. Alternatively, you could use both versions and code your site so that the version which comes up before a customer is decided automatically from the data you have asked them to enter. Still can't decide? Contact us using the link at the bottom of this page and we shall be more than happy to help you to choose. Alternatively, if your business is rather unusual or unique contact we to draw a bespoke terms and conditions document which may suit your business model better.(read entire article)
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Category : Legal

Employee Assessment Forms   By: james mark
Introduction: Businesses do not have to have an employee assessment system in place by law. However, the benefits of an appraisal system can be seen immediately: • They require an employee to focus on the work at hand and to reflect on their progress; • They give the supervisors / manager a chance to assess an employees’ work; • Both the employee and supervisor / manager can create a short term and long term plan of action for the employee; • The employee receives vital feedback and will feel focused and encouraged, therefore increasing work efficiency; • The employee and supervisor can assess the potential of the employee and look at possibilities for promotion and / or growth in the employees’ career. The forms: It is essential to have written records of the assessment to provide feedback to an employee and to allow more senior management to monitor the effectiveness of the assessment system. Most employee assessment forms should contain provision for: • Basic personal details - name, department, post, length of time in the job; • Job title; • Job description - a job title and a brief description of the main objectives and duties of the job. It helps assessors to focus attention on the employee's performance at work and to avoid assessing character; • Ratings - Ratings list a number of factors to be assessed such as quality and output of work, which are then rated on a numerical scale according to level of performance, for example. • 1 Outstanding; • 2 Exceeds requirements of the job; • 3 Meets the requirements of the job; • 4 Shows some minor weaknesses; • 5 Shows some significant weaknesses; • 6 Unacceptable; • The rating scales method is easy to construct, use and understand. However, there is a tendency to bunch the ratings around the average point and lack precision; • General comments by a more senior manager; • Comments by the employee; • A plan for development and action. Some appraisal techniques: • Rating - employee characteristics are rated on a scale which may range from 'outstanding' to unacceptable; • Comparison with objectives – An employee and their manager agree objectives and determine whether they have been met at the next assessment; • This method can be more participative - it gives an employee the chance to agree their objectives and enables self appraisal; • Critical incidents - The appraiser records incidents of employees' positive and negative behaviour during a given period; • The method can be time consuming and burdensome and it can result in an employee feeling that everything they do is being observed. The critical incidents method is useful as a supplement to other techniques; • Narrative report - The appraiser describes the individual's work performance in his or her own words; • This requires the assessor to describe the individual's work performance and behaviour in his or her own words. Narrative reporting is flexible and can enable the appraiser to gear the report to specific circumstances. However, its effectiveness depends largely on the literary ability of the assessor! Appeals: A procedure for employees to appeal against their assessment through a grievance procedure is necessary. Appeals should be made to a more senior manager than the assessor. The appraisal interview: • An employee should be given adequate notice of the assessment. Self assessment forms can help them prepare; • At least one hour should be set aside for the interview; • The assessor should suggest ways in which the employee's good work can be continued and how he or she can achieve further improvement; • Both parties should discuss how far agreed objectives have been met and agree future objectives. The structure of the interview: the interviewer should: • Explain the purpose and scope of the interview; • Discuss the job in terms of its objectives and demands; • Encourage the employee to discuss his or her strengths and weaknesses; • Discuss how far agreed objectives have been met; • Agree future objectives; • Discuss any development needs appropriate to the existing job or the individual's future in the organisation, for example: training, education, work experience; • Summarise the plans which are agreed.(read entire article)
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Category : Legal

Tenants - Lease Or Buy   By: james mark
Introduction: This article is based on common sense and a lot of experience. When your business requires its own premises a decision must be made as to whether to lease or purchase commercial property. If the answer is not immediately obvious to you, here are some of the considerations: 1. Available finances: Your first consideration will be based on whether you can afford to buy. If you can, but only just, is it worth pushing to own the property to save your money being poured into someone else’s hand if you instead, choose to rent. Of course your calculations will be based on interest rates and rates of return on property. Interest rates vary according to the economic cycle and a number of other factors. Rates of return on investment in property vary according to the interest rate cycle, and also to the type of business property. An investor in a substantial shop property in NSW for example, might expect a return of 5%, whereas an investor in industrial property in say, Newcastle, may seek a return of 10% or even 12%. This difference reflects the market's perception of risk. On a pure comparative cost calculation, you should therefore set out the figures comparing the total cost of being your own landlord, as against the total cost of someone else being your landlord. If you are looking at a rent of, say, $30,000 per year against a purchase at $300,000, then you need to be able to borrow at less than 10% for the cash flow effect of your purchase to be better than the cash flow effect of a lease (ignoring capital repayments). 2. Capital appreciation: In the long term the capital value of your purchased property will increase at least in line with inflation. For property, the ""long term"" can be said to be the life of an average building, so we are talking ""really, long term"". Even this however, is subject to other influences and trends. Over the last ten years the changing structure of the workforce has reduced the demand for industrial and older business property. Your motor repair workshop may only be worth the same number of dollars today as it was worth ten years ago. In real terms you have probably lost half its value. Even if you use a professional surveyor to advice on today's values, you will still need to take your own view on future values. In a property lease the risk is taken by your landlord. The rent is likely to be fixed for a number of years, and will then be increased in line with the general level of rents for similar properties. 3. Property is always a strong asset in the long term: In the cash flow calculation above, no account has been taken of repayments on any borrowing you took out to fund the purchase. If a large proportion of the purchase price was borrowed from a specialist property lender, with repayments of capital and interest (like your house mortgage), then you may still be able to find a deal which provides a total payment to your lender which is no greater than the sum that you would have been paying in rent. In that scenario, you end up owning your property. That is obviously more attractive than a property lease situation. But if you need to sell your property in bad times, you may not achieve the price you thought it was worth. 4. Flexibility: Buying your property will add to the general responsibility of your business and overall stress. At the end of a lease however, you can walk away with no further obligation. If you have to move whilst a lease is still running, you may have problems. You will have to continue to pay the rent - or find someone else to take over the lease from you. If the ""someone else"" you find fails to keep up payments, then you might find your old landlord knocking on your door instead. Finding a new tenant may be inconvenient. You may find there is a deficiency between the rent you were paying, and the new rent someone will pay to take you out. Simply, keep your business property lease as short as you can, or buy a property you are sure will increase in value.(read entire article)
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Category : Legal

Joint Tenants And Tenants In Common   By: james mark
Introduction If you are about to embark on the journey of buying property with someone else, you should read this article or do a little research from money management websites such as Love Money. Doing this may help you that purchase that will suit your needs. Similarly if you already own a property with someone else, this article will also be useful reading. Essentially, you must consider how the property is held if there is going to be more than one owner. Usually, as is the case with all legal matters, everything is blissful until there is a dispute. Land law is a particularly complicated area of law. You should therefore ensure you understand your rights and obligations before a dispute occurs. Note: while the law maybe similar in all states, this article has been written with only Queensland in mind. Co-owners in Queensland In Queensland there are two methods for Co-owners to hold property. This are: • Joint tenants; or • Tenants in common. This distinction also applies to persons who take a lease of or mortgage over, a property. Co-Owners of land in Queensland must be registered as joint tenants or tenants in common. If a transfer of property is silent on the issue it is recognised that the Co-owners hold as tenants in common in equal shares. Of course you might not own the property in equal shares – it might be 60/40, or 80/20. If the law presumes 50/50, one of you will lose out. Tenancy in Common This is where two or more individuals hold property as tenants in common in any shares they choose. For example: • A, B,& C purchase a property for $90,000; • A contributes $20,000, B, $30,000 and C, $40,000; • The transfer is noted as follows “A as to 2/9 share, B as to 3/9 share and C as to 4/9 share as tenants in common”; • The holding does not have to represent the party’s respective contributions; however this is preferable as it makes things easier for the courts to decide come a dispute. Each tenant in common has the right to deal with their share of the property separate from the others. So each individual can technically sell or mortgage their share of the property. Of course in practise, this is more difficult. Why would I choose a tenancy in common? The most important advantage of a tenancy in common is that your shares are protected in the proportions you designate. This is best illustrated by the death of a tenant. When a tenant in common dies their share of the property passes in accordance with their instructions as set out in their will. It is imperative if you hold any property as a tenant in common that you have a valid and enforceable will, which specifies the person or the organisation which is to receive the benefit of your share of the property. A tenancy in common is the only holding which allows you absolute control over who will receive your share upon death. If you are in a joint tenancy, the situation is different, as you will see below. Joint Tenancy Joint tenants hold property in equal shares no matter how many joint tenants there are. Upon the death of a joint tenant the share passes to the other joint tenant/s (in equal shares if more than one) automatically without reference to any intention of the deceased person, as may be set out in a will. The most common use of holding as joint tenants is a husband and wife situation where upon the death of the husband or wife their interest automatically passes to the surviving party. For example, husband and wife hold property as joint tenants. If the husband dies the wife is automatically the owner of the property. As we note below however there are wider considerations requiring careful thought before entering into either type of tenancy. What if there is a dispute between co-owners? Whether you choose a tenancy in common or a joint tenancy, the Property Law Act (QLD) 1974 (PLA) provides for the resolution of disputes between Co-owners. Aside from logical mediation and negotiation, a tenant can apply to the court pursuant to section 38(1) of the 1974 Act. Most commonly, the court will appoint a trustee to oversee the sale of the property. However, there are other solutions. In summary therefore the main method of ending a Co-ownership arrangement, be it joint tenants or tenants in common, is by the sale of the property. Can I change my mind? If you choose one particular holding over the other it is possible to alter the holding to the other form. The most common example of this is the severing of a joint tenancy in favour of a tenancy in common. Considerations when changing the type of holding Family Law Proceedings - Due to the high rate of divorces, some degree of planning is essential, even if this causes slight upset to either or both parties at the time. Of course it is important to correctly record your particular contribution accurately so that the other party (your husband or wife) doesn’t get the better deal. Simple put, it does not make any sense to hold as joint tenants or tenants in common in equal shares if the contributions of the parties do not reflect this. Asset Protection - It may be prudent to consult your solicitor or accountant before deciding on a holding if one of the parties is exposed to greater financial risk or the threat of bankruptcy. There will need to be a trade off of considerations in these cases particularly if the contributions will not be reflected in the holding, however the preservation of the property may be worth it. Estate Planning - the benefits of properly and effectively planning for your death you will never get to enjoy however the thought of providing for your family should be somewhat comforting. Consider this – A husband and wife own a home. The husband dies - the property goes directly to the wife. The wife then finds new husband and changes her will to leave the property to him. The wife then dies and the property goes to the new husband. Through the use of Testamentary Trust Wills this can be avoided and it can be insured that the assets will remain for the benefit of the children. For this to be possible, you must hold as tenants in common. How do I ensure the correct Co-ownership? You need a document to record your ownership contributions. This is known as a Co-owners agreement. These types of agreements are extremely useful for clarifying all owners’ rights and obligations and avoiding disputes.(read entire article)
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Category : Legal