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Employer-Sponsored Visas: A Strategic Pathway for Skilled Workers and Businesses

Wed, 15 Apr 2026 00:21:44 GMT

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Thinking of employing a skilled worker, or working for someone with your skills, but do not currently hold a visa to work in Australia? An Employer-Sponsored Visa may help resolve this dilemma.

The Employer-Sponsored Visa program allows Australian employers to nominate overseas workers for positions that cannot easily be filled by local employees. For many migrants, an employer-sponsored visa provides a pathway to long-term employment and, in some cases, permanent residency. However, navigating the requirements, obligations, and eligibility criteria of these visas can be complex for both employers and applicants. We are able to help you through the whole journey from sponsorship to visa application.

The Employer-Sponsored Visa program includes three main visa subclasses: subclass 482, subclass 494, and subclass 186. Each visa subclass has different requirements in relation to the nominated occupation, employment location, the applicant’s work experience and English skills.

Given the frequent updates to policies and requirements, navigating this visa pathway can become complex and overwhelming. If you are considering whether any of the visa subclasses are suitable for your circumstances, now is the time to seek the right guidance.

Our experienced solicitors in our Immigration team are ready to assist you at every stage, from initial eligibility assessment through to application and compliance, ensuring a smooth, efficient process while minimising risk and stress. Book an initial consultation with Coco Zu to discuss your situation, explore your options, and settle on a strategic plan tailored to your needs. With the right legal support and guidance from the start, CJM Lawyers can make all the difference to your future in Australia. Contact our office on 1300 245 299 or email info@cjmlaw.com.au to get started now!

Debt Recovery Done Right: Why Legal Help Matters

Wed, 15 Apr 2026 00:21:35 GMT

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Recovering unpaid debts is a critical concern for businesses and individuals alike. While some may attempt to recover debts independently, engaging a lawyer offers significant advantages that can enhance the likelihood of successful recovery and protect the creditor’s interests throughout the process.

1. Legal Knowledge and Strategic Guidance

Lawyers possess a comprehensive understanding of debt recovery laws, including relevant statutes, regulations, and procedural requirements. They can assess the merits of a claim, advise on the most effective recovery strategies, and ensure compliance with all legal obligations, thereby reducing the risk of procedural errors that could jeopardize the claim.

2. Professional Communication and Negotiation

A lawyer’s involvement often signals to the debtor the seriousness of the creditor’s intent to recover the debt. Lawyers are skilled negotiators who can engage with debtors professionally, increasing the likelihood of reaching a settlement without the need for litigation. Their ability to draft and send formal demand letters can prompt payment or constructive dialogue.

3. Efficient Litigation and Enforcement

Should negotiation fail, lawyers are equipped to initiate legal proceedings efficiently. They can prepare and file court documents, represent the creditor in hearings, and pursue enforcement actions such as garnishments, charging orders, or asset seizures. Their familiarity with court processes ensures that the matter progresses without unnecessary delay.

4. Risk Mitigation and Compliance

Debt recovery efforts must comply with laws and regulations. Lawyers can ensure that all actions taken are lawful, thereby minimising the risk of counterclaims or regulatory penalties.

5. Maximising Recovery and Cost Efficiency

By leveraging legal tools such as statutory interest, costs recovery, and security interests, lawyers can maximise the amount recovered. Their ability to assess the debtor’s financial position and identify available assets further enhances the prospects of successful recovery.

Conclusion

Engaging a lawyer in the debt recovery process provides creditors with legal knowledge, strategic advantage, and procedural efficiency. This professional support not only increases the likelihood of recovering unpaid debts but also ensures that the creditor’s rights are protected throughout the process. Speak to a member of our Debt Recovery team today by contacting our office on 1300 245 299 or via email at info@cjmlaw.com.au . Our team are backed by years of experience to provide practical, commercially focused guidance tailored to your specific circumstances and we strive to achieve great outcomes. To recover what you’re owed with confidence, let CJM Lawyers provide you with the right legal knowledge and support today!

Enduring Power of Attorney Documents

Fri, 20 Mar 2026 00:14:06 GMT

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When thinking of estate planning most people consider only the most important document, their Wills. But a document that is often overlooked is an Enduring Power of Attorney document (‘EPA’). Despite the importance of this document most individuals delay preparing this document until its too late.

An EPA allows you to appoint a trusted person (a family member, friend, or professional (e.g. solicitor or accountant) to legally act on your behalf and make financial and or personal decisions when you are unable to do so yourself (if you lose the capacity)

Without a valid EPA in place, your loved ones may face significant difficulties if something unexpected happens and you were suddenly unable to manage your finances or make important decisions. Your family and friends may need to undergo a time-consuming, costly and stressful process of applying through a tribunal or court to be formally appointed to act for you. This is not ideal especially during an already challenging time.

Further an EPA ensures that the person chosen as your attorney to make decisions for you is someone you have personally chosen and trust.

Just because you have an EPA does not mean you suddenly lose control of managing your own affairs. It simply means that you have planned ahead should your circumstances change with no notice. Whilst you have capacity any decision making for yourself remains your own.

It is also important to note that each Australian jurisdiction has its own specific documents that encompasses an EPA. Seeking advice relevant to your location can ensure the correct documents are prepared for you.

An EPA is a simple but powerful step in your estate planning as it protects your interests, supports your loved ones, and ensures that important decisions can still be made for you. Like a Will, it is a document everyone should consider as part of their estate planning.

At CJM Lawyers we can assist you in preparing your Enduring Power of Attorney documents, drawing on our highly experienced estate planning team. CJM Lawyers can guide you through the process with confidence and clarity, helping you put the right protections in place for the future. To discuss and arrange for a meeting to see how we can help you, please book a meeting with a member of our estates team today!

New AML/CTF Regulations : A Brief Explanation of Tranche 2 Reforms, Obligations, and How We Can Help

Fri, 20 Mar 2026 00:13:59 GMT

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Australia’s anti-money laundering and counter-terrorism financing (AML/CTF) regime is undergoing significant reform, with the long-anticipated “Tranche 2” reforms set to reshape the regulatory landscape.

What Are the Tranche 2 Reforms?

Since the introduction of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, Australia’s AML/CTF regime has applied primarily to financial institutions, gambling providers and certain remittance services. Tranche 2 reforms will extend these obligations to additional high-risk sectors, including legal practitioners, accountants, trust and company

service providers, real estate professionals and dealers in precious metals and stones.

Key Compliance Obligations

Entities newly captured under Tranche 2 will be required to:

Enrol and register with AUSTRAC from 31 March 2026.
Develop and maintain a compliant AML/CTF Program before 1 July 2026.
Undertake customer due diligence (CDD), including identification and verification of clients and beneficial owners.
Conduct ongoing customer monitoring.
Report suspicious matters, threshold transactions and annual reports on an ongoing basis; and
Maintain appropriate records and governance controls.

Increased Regulatory Scrutiny and Enforcement

AUSTRAC has demonstrated a willingness to take strong enforcement action against non compliant entities in recent years. With the expansion of the regime, newly regulated sectors can expect heightened supervisory engagement, including audits and enforcement proceedings where serious deficiencies are identified.

Preparing for the Transition

Although transitional periods are anticipated, affected businesses should begin preparing now. Early action may include conducting preliminary risk assessments, mapping services against designated activities, reviewing client onboarding procedures, and engaging external advisors to assist with program design and implementation.

The Tranche 2 reforms represent one of the most recent substantial expansions of Australia’s financial crime regulatory framework. For many organisations, compliance will not simply be a box-ticking exercise, but a fundamental operational adjustment.

How Can We Help?

At CJM Lawyers, we have been closely monitoring the evolving AML/CTF regime for years through our experience in advising Tranche 1 entities of their compliance obligations. Our team can assist with risk assessments, AML/CTF program development, governance reviews, and regulatory engagement to ensure your organisation remains compliant. In a rapidly changing legal and regulatory landscape, proactive and ongoing advice is essential — and we are here to help you stay regulated, protected and prepared.

Arrange for a meeting with a member of our experienced regulatory compliance team to see how we can help you navigate this new area with confidence.

Selling Property in NSW: The Importance of Getting the Contract Right

Tue, 10 Feb 2026 01:46:50 GMT

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Preparing a Contract for Sale of Land in NSW is a critical step in any property transaction. For vendors, the contract sets the legal framework for the sale and defines the rights and obligations once contracts are exchanged. Errors or omissions at this stage can expose a vendor to issues such as delays and disputes.

In NSW, a property cannot be marketed for sale without a draft Contract for Sale. The contract must include prescribed documents, also known as vendor disclosure documents. These include:

a current title search;
a plan of the land;
relevant dealings affecting the land;
a Council Planning (section 10.7) Certificate; and
a sewerage diagram.

Depending on the property, additional documents may be required, such as strata records, pool compliance or non-compliance certificate or notices affecting use or development.

The consequences of missing disclosure documents can be significant. A purchaser may have a statutory right to rescind the contract within 14 days after exchange if certain prescribed documents are not included, which can result in a sale being terminated even where price and key terms have been agreed.

It is also important that proper special conditions are drafted. These can address things such as potential property issues, manage tenancy arrangements and tailor settlement terms. Poorly drafted or missing conditions often lead to disputes, which can cause delays in settlement, prompt renegotiation or allow the purchaser to rescind the contract.

Timing is also important. Preparing the contract early allows potential issues to be identified before a property is listed. This reduces pressure during negotiations and helps avoid last minute amendments that can unsettle a transaction or lead to a purchaser withdrawing.

CJM Lawyers assists vendors across NSW with the preparation of Contracts for Sale of Land, ensuring that disclosure obligations are met and that the contract accurately reflects the property and the vendor’s position. We provide practical advice on risk management, special conditions and settlement planning.

A well prepared contract is the foundation of a smooth property sale. Early legal advice can reduce risk, protect value and support a timely settlement.

If you would like advice on preparing a Contract for Sale, contact the CJM Lawyers NSW property team.

Security of Payment Adjudication: What to Expect When Your Dispute Goes to Determination

Tue, 03 Feb 2026 03:25:08 GMT

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You’ve served your payment schedule disputing a construction payment claim. Now the claimant has applied for adjudication. What happens next? Many respondents enter the adjudication process unprepared, not realising how quickly decisions are made or how binding they are.

Understanding the adjudication process under Queensland’s Building Industry Fairness (Security of Payment) Act 2017 and NSW’s Building and Construction Industry Security of Payment Act 1999 is critical to protecting your interests.

What Is Adjudication?

Adjudication is a fast-track dispute resolution process designed to provide interim cash flow relief while preserving parties’ rights to pursue final resolution through court or arbitration. An independent adjudicator reviews the payment claim, payment schedule, and supporting materials, then makes a binding determination on how much must be paid.

The key word is interim. The adjudicator’s decision determines payment obligations temporarily, not permanently. However, most disputes end at adjudication – the cost and delay of further litigation means parties often accept the determination as final.

The Timeline: Speed Is Everything

Adjudication moves fast. Once an application is made:

Queensland : You typically have 10 business days to file your adjudication response. The adjudicator then has 15 business days to make a determination (extendable to 20 days with consent).

New South Wales: You have 5 business days to file your response (extendable to 10 days with claimant consent). The adjudicator has 10 business days to decide (extendable to 15 days).

These timeframes are strictly enforced. Late submissions may be rejected entirely, leaving you unable to present your case.

What goes into an Adjudication Response?

Your adjudication response is your opportunity to defend your position. It must be comprehensive because you’re limited to the reasons you included in your payment schedule – no new arguments are permitted.

A strong response typically includes:

Detailed submissions: Explaining why the scheduled amount is correct, addressing each element of the claim

Supporting evidence: Contracts, correspondence, site records, photographs, expert reports, invoices

Legal analysis: Interpretation of contract terms, legislative requirements, and relevant case law

Technical challenges: Jurisdictional objections, validity issues with the claim or adjudication application

This is not a simple letter. Adjudication responses regularly run 30–50 pages with extensive annexures. The adjudicator will be reviewing both parties’ submissions simultaneously, so clarity and organisation matter.

The Adjudicator’s Decision

The adjudicator will issue a written determination setting out their decision and reasons. They can:

Uphold the claimed amount in full
Accept your scheduled amount
Determine a different amount between the two

In both Queensland and NSW, you must pay the adjudicated amount within 5 business days (or as specified in the determination).

Failure to pay can result in the claimant suspending work or, more seriously, obtaining a judgment for the debt and pursuing enforcement action against your company.

Can You Challenge the Decision?

Yes, but the grounds are narrow. You can apply to court to set aside an adjudication determination for:

Jurisdictional error: The adjudicator made a decision they had no power to make

Denial of natural justice: You weren’t given a fair opportunity to present your case

Generally, you cannot challenge the adjudicator’s decision simply because you disagree with their assessment of the facts or law. The threshold for setting aside a determination is high.

Importantly, you must still pay the adjudicated amount even while challenging the determination. The principle is “pay now, argue later.”

The Importance of Early Preparation

The adjudication timeframes are tight. Once you serve a payment schedule disputing a claim, you should assume adjudication is coming and start preparing immediately:

Waiting until the adjudication application arrives leaves you scrambling. In NSW, with only 5 business days to respond, delay can be fatal to your case.

Get Legal Guidance

Adjudication is a high-pressure, time-critical process that requires immediate action and strategic thinking. Whether you’re facing an adjudication application or considering applying for one yourself, experienced legal advice makes the difference between success and failure.

CJM Lawyers’ litigation and dispute resolution team regularly represents clients in security of payment adjudications across Queensland and NSW. We understand what adjudicators look for, how to present your case effectively, and how to protect your interests under tight deadlines.

Don’t navigate adjudication alone – contact CJM Lawyers today.

Disclaimer: This article provides general information only and does not constitute legal advice. Every adjudication is unique and requires specific legal advice tailored to your circumstances. Contact CJM Lawyers promptly if you are involved in a security of payment dispute.

Received a Payment Claim? Why Time Is Your Biggest Enemy

Tue, 03 Feb 2026 03:13:24 GMT

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A payment claim arrives from your contractor demanding payment. Your instinct might be to set it aside while you check the details. That delay could be the most expensive mistake you make.

Under Queensland’s Building Industry Fairness (Security of Payment) Act 2017 and NSW’s Building and Construction Industry Security of Payment Act 1999, you could become legally obligated to pay the full amount – even if you dispute the work – simply by failing to respond on time.

What Is a Payment Claim?

A payment claim is a formal written demand for payment under a construction contract. It doesn’t need to be labelled “payment claim” – an invoice or progress claim identifying the work and amount will often suffice. These claims are designed to keep cash flowing through construction projects, giving claimants a fast-track recovery process.

The Danger of Doing Nothing

If you don’t respond by serving a payment schedule within the prescribed timeframe, you are deemed to have admitted the claim. This means you become liable to pay the full amount – even if the work was defective or never performed. The claimant can take immediate debt recovery action, and you lose your right to dispute through adjudication.

The Timeframes Are Tight

Unless your contract provides otherwise, the timeframes are tight and are usually:

Queensland: 15 business days from receiving the payment claim to serve a payment schedule.

New South Wales: 10 business days from receiving the payment claim to serve a payment schedule.

These are strict deadlines with limited discretion for extensions. The consequences of missing them are severe.

What Is a Payment Schedule?

A payment schedule is your formal response to the claim. It must identify the claim, state the amount you propose to pay (which can be zero), and provide reasons if you’re paying less than claimed.

What Happens Next?

After serving a payment schedule, the claimant can either accept your scheduled amount or apply for adjudication – a rapid process (typically 10–15 business days) where an independent adjudicator reviews the dispute. The adjudicator’s decision is binding, meaning you must pay the adjudicated amount even if you plan to challenge it later in court.

Why You Need Legal Advice Now

Time is not on your side. Getting legal advice immediately is essential to:

Assess validity: Not every claim is valid under the legislation. A lawyer can identify defences quickly.

Prepare a payment schedule: An invalid payment schedule leaves you exposed as if you hadn’t responded at all.

Don’t Let the Clock Run Out

Security of payment legislation protects cash flow in the construction industry, but it places significant responsibility on you to respond quickly and correctly. The penalty for getting it wrong is severe.

Our experienced litigation team regularly assists clients with security of payment disputes across Queensland and NSW. We can review your claim, prepare a compliant payment schedule, gather evidence, and represent you in adjudication if required.

Don’t face this alone – contact CJM Lawyers today.

Disclaimer: This article provides general information only and does not constitute legal advice. Security of payment legislation is complex and fact-specific. It is essential to seek specific professional legal advice tailored to your individual circumstances as soon as you receive a payment claim.

Engaging Counsel in NSW and QLD: Timing, Risk & Strategy

Tue, 20 Jan 2026 05:56:09 GMT

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A Practical Perspective for NSW and Queensland Matters

In New South Wales and Queensland, the legal profession is fused. Both solicitors and barristers are qualified legal practitioners, and there is no procedural requirement to brief counsel at any particular stage of a matter.

That often leads clients to delay the decision. In practice, the question is not whether a barrister is required, but whether the matter has reached a point where the risks involved justify specialist advocacy and advice.

Engaging a barrister is not a sign that a dispute has escalated beyond control. It is a strategic decision about how that dispute should be managed.

What a Barrister Actually Brings to a Matter

Barristers are commonly associated with court appearances and trials. In reality, much of their value lies well before a matter reaches a hearing. They are trained to analyse risk, test legal arguments, and anticipate how a court is likely to respond to a case as it develops.

Early involvement often focuses on advising on prospects, settling pleadings, shaping evidence, and identifying which issues genuinely matter. In many cases, this prevents problems that become expensive or impossible to correct later.

The Importance of Timing

One of the most common points at which counsel should be considered is before pleadings are finalised. Once pleadings are filed, positions harden. Admissions may be made inadvertently, causes of action may be poorly framed, and procedural vulnerabilities may be exposed. Fixing these issues later usually involves contested applications and additional cost.

Similarly, when interlocutory applications are threatened or underway, the stakes increase quickly. Applications such as strike-outs, summary judgment, or injunctions can determine the direction of a matter long before trial. These are moments where technical precision and courtroom experience matter.

Another common trigger is when a dispute turns on a narrow or unsettled point of law. Some cases are fact driven. Others are decided almost entirely on statutory interpretation or competing authorities. Where that is the case, specialist advice is not a luxury – it is essential.

Costs Risk and Commercial Reality

Litigation is not just about the merits of a claim. It is also about costs exposure. As matters progress, the financial consequences of getting strategy wrong increase. A barrister can provide clear advice on when to push forward, when to reassess, and when settlement should be actively pursued.

There is a persistent misconception that briefing counsel necessarily increases costs. In practice, targeted advice at the right time often reduces overall expenditure by narrowing issues, avoiding unnecessary applications, and strengthening settlement positions.

NSW and Queensland Considerations

While the core principles are consistent across jurisdictions, procedural culture differs slightly. In New South Wales, courts tend to scrutinise pleadings closely and are more receptive to early dispositive applications. This often makes early engagement of counsel particularly valuable.

Queensland courts are generally more pragmatic in their approach to case management, but the risk profile still shifts sharply once a matter moves beyond informal negotiation or becomes procedurally complex. In both jurisdictions, the underlying question remains the same: what is the consequence if the current approach is wrong?

A Collaborative Model

Engaging a barrister does not mean the solicitor steps aside. The solicitor remains responsible for carriage of the matter, evidence gathering, and client communication. Counsel provides a complementary skill set: strategic distance, advocacy experience, and deep familiarity with how courts approach particular issues.

The most effective outcomes are usually achieved where solicitors and barristers work together early, rather than when counsel is briefed reactively on the eve of a hearing.

Conclusion

There is no fixed rule as to when a barrister should be engaged. However, most disputes reach a point where the risks – legal, procedural, or financial, change materially.

At that point, the real question is not whether engaging a barrister is necessary, but whether proceeding without one is a risk worth taking.

Disputes can arise in everyday life – with neighbours, family members, business partners, landlords, builders, or customers. Often, they start small and quickly become stressful, emotional, and hard to manage. Our litigation team helps you understand your options early, cut through the noise, and work towards the best possible outcome by providing the necessary advice and action. Don’t face the situation alone, talk to CJM Lawyers today!

Buying a Business in QLD or NSW: Different States, Different Rules

Thu, 15 Jan 2026 02:29:23 GMT

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Buying a business is an exciting venture, but the legal "to-do list" looks different depending on which side of the Tweed River you are on. Whether you’re eyeing a café in Surfers Paradise or a boutique in Byron Bay, navigating the transition from the current owner to you requires a sharp eye on the details.

Here are the four key areas where the rules change between Queensland and New South Wales.

1. The Contract of Sale

In Queensland, we typically use the REIQ Business Sale Contract. In NSW, it’s common to use the Law Society/Real Estate Institute version. While both cover the basics, they handle "dispute resolution" and "vendor warranties" (the promises the seller makes about the business) differently. With years of experience in commercial law, CJM Lawyers will ensure the contract is tailored to the specific laws of the state where the business is located.

2. The Lease: Your Business's Home

The lease is often the most valuable asset you’ll take over.

In QLD: The Retail Shop Leases Act has very strict rules about "Disclosure Statements" that the landlord must give you.
In NSW: The Retail Leases Act applies, which has its own specific timelines and forms. If the landlord doesn’t provide the right paperwork at the right time in either state, it can lead to massive headaches or even the right to walk away from the lease later.

Both Acts play a crucial role in preventing any hidden issues from the landlord and assignor that could surprise you after a transfer or the start of a lease. CJM Lawyers, as a trustworthy solicitor, will ensure that all necessary disclosures are made before you make a decision.

3. The "Tax Trap": Transfer Duty

This is the biggest difference between the two states:

Queensland: You generally still have to pay Transfer Duty (stamp duty) on the value of the business assets (like equipment and goodwill). This is an extra cost you must budget for.
NSW: In most cases, NSW has abolished stamp duty on the transfer of "intangible" business assets like goodwill. However, you might still pay duty if the sale includes land or certain other interests.

With CJM Lawyers, experienced in commercial transactions across both jurisdictions, we help you understand the nuances to avoid unexpected late penalties or potential legal actions from the state revenue office.

4. Taking Over the Team (Staff)

While the Fair Work Act is national, the way we "adjust" the price for employee leave at settlement is a matter of contract. Specifically, the REIQ contract usually grants a 70% credit to the Buyer for accrued leave on its standard terms, while NSW’s law society or REI contract may not be explicit in this regard in detail. Regardless of the difference, it is still open to negotiation between you and the seller. We, CJM Lawyers, make sure that if you are taking on staff who have years of accrued long service leave or annual leave, the seller gives you a fair discount on the purchase price, so you aren't left footing the bill alone later.

How We Can Help

Mastering both QLD and NSW means we understand the nuances of both systems. CJM Lawyers will act as your advisor, identifying risks like hidden debts on equipment or tricky lease terms, before you sign on the dotted line.

If you’re considering buying a business, early legal advice can save you time, money and stress. Contact CJM Lawyers today to start the conversation.

Don’t Let Unpaid Invoices Ruin Your Holiday Season

Thu, 11 Dec 2025 01:15:24 GMT

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Do You Have Unpaid Invoices Before Christmas?

December should be a great month for business, but for many sole traders and SMEs it’s the most stressful time of year. Clients slow down, accounts departments go on leave, jobs wrap up late, people are travelling and everyone wants to push everything into January. Suddenly, you’re left with chasing unpaid invoices right when cash flow matters most and people are least likely to want to pay because of their own holiday spending commitments.

The good news is that there are practical and quick steps you can take before Christmas to increase your chance of getting paid and keep cash flow steady.

1. Start with a phone call (it works more often than you think). Before going straight to legal action, make a follow up call. December is a busy time for everyone, and many invoices aren’t paid because they simply fall through the cracks. Then, send a follow-up email with the original invoice attached, check if anything further is needed and give them a clear but reasonable timeframe to action payment (e.g. within 2 business days). If this is ignored, or payment isn’t received, it’s time to remove all uncertainty.

2. Send a second follow-up email and make sure you refer to the agreed payment terms, confirm the overdue amount and new deadline (e.g. end of day), and be clear that you may need to escalate the matter to debt recovery if payment isn’t received. Then, if that doesn’t result in payment, you take legal action.

3. Engage a law firm to send a formal letter of demand. This sets out what is owed, the basis of the debt, the evidence supporting it and a strict deadline for payment (usually 7-14 days). Most importantly, this shows your client or customer that you’re willing to take further action if required. Many of our clients see action after taking this step.

Before engaging a lawyer to send a Letter of Demand or start recovery action, it’s important to make sure the debt justifies the cost. As a general guide, having a law firm prepare a formal Letter of Demand will usually cost around $330, depending on the complexity and the amount of supporting documents involved. For most businesses, it becomes worthwhile to involve a lawyer once the debt is around $1,000–$1,500 or more, or where the debtor has been consistently avoiding payment. For smaller amounts, a strong self-written reminder or final notice may be the more cost-effective option. That said, if the unpaid amount is linked to ongoing services, a difficult client, or you’re concerned about deeper issues (like insolvency), seeking early advice can prevent bigger losses or issues down the track.

4. If the debt is small to moderate, your state or territory’s civil tribunal may be the quickest and most cost-effective option. Every state has its own tribunal (e.g. QCAT in Qld, NCAT in NSW, VCAT in Victoria), each with different monetary limits and processes. You often don’t need a lawyer to file, though getting legal guidance can strengthen your evidence and submissions. Importantly, tribunal applications can usually be lodged online at any time, even over the holiday period and hearing dates for matters lodged in December/January are typically allocated early in the new year (so act sooner rather than later on this). For larger or more complex debts, the Magistrates/Local, District/County or Supreme Court may be more appropriate, and your lawyer can advise you on what this involves.

5. If you know payment won’t come before Christmas, there are several strategic measures that can protect you in the new year:

Collate all quotes, invoices, emails, texts, delivery records.
Stop providing further goods or services until the debt is paid.
Review overdue accounts and consider whether stronger terms (deposits, staged payments, written contracts) are needed for 2026.

These measures put you back in control and assist in preventing the issue from growing.

If the amount is significant, the debtor is unresponsive, or you think they’re trying to delay things until everyone is on leave for the holidays, getting legal advice early often saves money and stress. A short conversation with our litigation team can help you understand your rights, choose the fastest pathway, and avoid wasting time on steps unlikely to succeed.

Private & commercial pilots: what a DUI means for you

Tue, 21 Oct 2025 02:06:02 GMT

If you hold (or want) a pilot licence , a drink driving charge isn’t just a traffic matter, it can put your medical and flying privileges under the microscope. The smart move is to get advice early, before making any aviation disclosures.

Why this matters (even if it happened on the road)

Aviation is conservative for good reason. Any alcohol related offence can raise questions about fitness to fly, which may lead to:

Medical scrutiny (extra checks, temporary conditions).
Short-term flying restrictions while assessments occur.
Career and insurance impacts, particularly in commercial roles .

We’re not saying your flying days are over, just that it’s both a legal and aeromedical issue from day one.

Three costly myths:

“It’s only a driving issue.” For pilots, it becomes an aviation issue quickly.
“No conviction recorded = no problem.” Outcomes short of conviction can still trigger medical reviews and suspensions .
“If I don’t report it, it goes away.” Missing a reporting obligation can be worse than the incident itself.

If this happens, keep it simple and strategic:

Call us first. We’ll help you meet your reporting obligations on time, in the correct form, and with clear, relevant facts.
Coordinate with a Designated Aviation Medical Examiner (DAME) for a practical medical plan.
Document sensibly (any counselling, test results, timelines) to support a return to flying pathway.
Expect a pause, not necessarily a full stop. Many pilots return with structured steps and credible evidence.

How we help:

Clear pathway back: Legal, medical and practical steps aligned.
Risk management: What to report, when, and how.
Career protection: Engage with regulators, employers and insurers the right way.

A realistic outlook

Plenty of pilots resume flying. Success usually comes down to early advice, credible records, and compliance. Safety is the regulator’s north star; our job is to present your case clearly and keep momentum.

Need guidance?
CJM Lawyers advises pilots and operators on aeromedical and regulatory issues arising from drink driving charges. Speak to our Aviation Law team promptly so you meet any reporting obligations on time and in the correct form.

General information only. This is not legal advice. Your circumstances will determine your obligations and options.

Understanding Testamentary Trusts

Fri, 10 Oct 2025 01:00:43 GMT

Testamentary Trusts are powerful estate planning tools that deliver substantial tax savings and robust asset protection for your beneficiaries. This guide explores the key advantages of incorporating a Testamentary Trust into your estate plan and demonstrates how this strategy can preserve and grow your family's wealth for generations to come.

A will is a legal document that allows you to control what happens to your assets after you pass away. As the testator (the person making the will), you can specify how your estate should be distributed among your chosen beneficiaries. Beyond asset distribution, your will also names the executor—the person or people you trust to carry out your wishes and handle the administration of your estate.

What is a Testamentary Trust?

A Testamentary Trust is a sophisticated estate planning tool that operates through your will. Unlike a standard will that distributes assets directly to beneficiaries, a Testamentary Trust holds some or all of your assets in a trust structure after your death. This structure provides ongoing protection and management of your wealth for the people you care about most, your beneficiaries.

How does a Testamentary Trust Work?

When you pass away, the Testamentary Trust automatically comes into effect as outlined in your will. Rather than receiving assets outright, your beneficiaries become entitled to distributions from the trust. The trustee you've appointed in your will takes on the responsibility of managing the trust assets and making distributions according to your instructions and the beneficiaries' needs.

Significant Tax Advantages

One of the most compelling reasons to consider a Testamentary Trust is the substantial tax savings it can deliver for your beneficiaries. These benefits are particularly valuable when your beneficiaries either earn high incomes or include children under 18 years of age.

How the Tax Benefits Work

Under Section 102AG of the Income Tax Assessment Act 1936, income distributed from a Testamentary Trust qualifies as "excepted income." This special classification allows your beneficiaries to access the tax-free threshold on trust distributions—a significant advantage not available with standard discretionary trusts, where distributions to minors above $641 are typically taxed at penalty rates equivalent to the top marginal tax rate.

Key Benefits of Testamentary Trusts

Asset Protection - Trust assets are generally protected from beneficiaries' creditors, relationship breakdowns, and poor financial decisions.
Flexibility - Trustees can adapt distributions based on beneficiaries' changing circumstances, such as education needs, health issues, or life stages.
Tax Efficiency - Testamentary Trusts can provide significant tax advantages, including income splitting opportunities and concessional tax rates for minor beneficiaries.
Control from Beyond - You maintain control over how and when your assets benefit your loved ones, even after your death.

Is a Testamentary Trust Right for You?

Testamentary Trusts are particularly valuable for families with:

Young children or grandchildren
Beneficiaries with disabilities
Complex family structures
Significant assets requiring ongoing management
Concerns about beneficiaries' financial responsibility

Who Benefits Most from These Tax Advantages?

High-Income Beneficiaries - Trust distributions can be allocated to lower-income family members, reducing the overall tax burden.
Families with Minor Children - Children can receive distributions using their full tax-free threshold, rather than facing penalty tax rates.
Multi-Generational Wealth Transfer - Income can be distributed strategically across family members to optimise tax outcomes year after year.
Long-Term Financial Impact - These tax savings compound over time, potentially saving your family tens of thousands of dollars annually while preserving more of your wealth for future generations.

For personalised advice on whether a Testamentary Trust suits your circumstances and to explore the specific tax benefits for your family, speak with our experienced estate planning team.

Why Intellectual Property Protection is Essential for Business Success

Mon, 08 Sep 2025 02:57:42 GMT

Why is IP Protection Crucial for Your Business?

In today's fast-paced, innovation-driven economy, what truly differentiates a business isn't always tangible. It's often the unique ideas, the recognisable brand, the innovative processes, and the creative works – collectively known as intellectual property (IP) . For businesses of all sizes, from agile startups to established enterprises, protecting these intangible assets isn't just a legal formality; it's a strategy for long-term success and growth.

In Australia, like anywhere else, a failure to proactively protect your IP can expose your business to significant risks, undermining your competitive edge and stifling your potential for expansion.

Safeguarding Your Competitive Advantage

Imagine dedicating countless hours and significant resources to developing a groundbreaking product or a distinctive brand identity. Without proper IP protection, a competitor could legally replicate your innovation or imitate your branding, directly siphoning off your market share. This isn't just about preventing direct copying; it's about building a legal "moat" around what makes your business unique.

Trademarks protect your brand name, logo, slogan, and even unique packaging , ensuring that customers can distinguish your goods and services from those of competitors. A strong, protected trademark builds brand loyalty and trust.
Trade Secrets cover confidential business information that provides a competitive advantage , such as proprietary formulas, customer lists, or manufacturing processes. Maintaining their secrecy through robust internal controls and agreements is key to their protection.

By securing these rights, you gain the legal standing to deter infringement and take action against those who try to unfairly capitalise on your hard work.

Attracting Investment and Enhancing Business Value

For startups seeking funding or established companies looking for expansion capital, a strong IP portfolio is a powerful magnet for investors. Venture capitalists and lenders increasingly view IP as a critical asset, reflecting a company's innovation, market potential, and reduced risk profile. A robust IP strategy signals that your business is not only innovative but also strategically sound and legally protected.

IP assets can significantly enhance your business's overall valuation. Imagine a tech company with a suite of patents covering its core technology, or a consumer brand with globally recognised trademarks; these assets add substantial value beyond physical property. In a similar vein, your trademarks can significantly enhance the value of your business.

Generating Revenue Streams

IP is not merely a defensive tool; it's an offensive weapon for revenue generation. Once your IP is protected, you can monetise it in various ways:

Licensing: Granting others the right to use your patented technology, copyrighted material, or trademarked brand in exchange for royalties or fees. This can open new income streams without requiring expense from your side.
Franchising: For businesses with strong brands and proven business models, IP protection is fundamental to successful franchising, allowing you to expand your footprint while maintaining control over your brand identity and operational standards.
Sale of IP: Your intellectual property can be sold outright, providing a significant capital injection.

Conclusion

In the dynamic business landscape of today, intellectual property is no longer a niche legal concern but a core business asset. Prioritising its protection is fundamental to securing your competitive advantage, attracting crucial investment, opening new revenue avenues, and fostering an environment of innovation. By understanding and proactively managing your IP, your business can build a resilient foundation for sustainable growth and long-term success.

Understanding Instalment Contracts in Queensland Property Transactions

Tue, 05 Aug 2025 05:24:07 GMT

In the dynamic landscape of Queensland property , certainty and clarity are paramount. While most residential property contracts proceed smoothly from signing to settlement, there lies a subtle legal nuance that can dramatically alter the rights and obligations of both buyers and sellers: the instalment contract . Often unintentionally created, instalment contracts grant buyers several statutory protections in the case of a buyer’s default, which restrict a seller’s right to deal with the contract.

What is an Instalment Contract?

Under section 71 of the Property Law Act 1974 (Qld), an instalment contract is broadly defined as an executory contract for the sale of land where the purchaser is bound to make one or more payments (other than a deposit) without becoming entitled to receive a conveyance (transfer of title) in exchange for those payments. In essence, it's a contract where the buyer makes payments to the seller, which do not form part of the deposit over time before the property formally changes hands at settlement.

The 10% Threshold and Beyond: A Critical Trigger

The term "deposit" itself has a specific meaning within the Property Law Act. The Act provides that a deposit cannot exceed 10% of the purchase price (or 20% for off-the-plan sales). Where the deposit exceeds the prescribed percentage of the purchase price, the contract will be deemed to be an instalment contract, regardless of the intentions of the parties. A contract may also fall within the meaning of an instalment contract in the following circumstances:

Additional Pre-Settlement Payments: Payments such as license fees, early possession fees, or any other amounts paid by the buyer to the seller before settlement, and separate from the deposit, can inadvertently trigger an instalment contract. Even a seemingly small, non-deposit payment can convert a standard contract into an instalment contract.
Non-Refundable Deposits: While less common in standard contracts, if a deposit is structured to be non-refundable, particularly if released to the seller, it can be re-characterised as an instalment, thereby triggering the Act's provisions.

The Unexpected Consequences: Why Sellers Must Beware

For sellers, the inadvertent creation of an instalment contract introduces a suite of statutory protections for the buyer. It is important to be aware of these protections as they restrict how a seller may deal with a buyer’s default of the contract. These protections include:

Restricted Termination Rights (Section 72 PLA): Unlike standard contracts, a seller cannot immediately terminate for a buyer's default under an instalment contract. The seller must provide the buyer with at least 30 days' written notice to remedy the breach before the seller may exercise a right of termination. The inability to immediately terminate an instalment contract will often have lasting delays from a seller who may be unable to enter into a subsequent contract, even where it is abundantly clear the buyer will be unable to complete the contract.
Buyer's Right to Lodge a Caveat (Section 74 PLA): Under an instalment contract, the buyer gains an express statutory right to lodge a non-lapsing caveat over the property. This caveat prevents the registration of any other instrument affecting the title of the property until it is removed, potentially complicating any dealings with the land.
Buyer's Right to Demand Conveyance (Section 75 PLA): Perhaps most impactful, if the buyer has paid one-third or more of the purchase price (and is not in default), the buyer can demand by written notice that the seller transfer the legal title to them immediately. It is however, a condition of the transfer that the seller be permitted to execute a mortgage over the property in favour of the seller for the remaining balance of the purchase price. This transforms the seller into a mortgagee and imputes the seller with all the associated risks and responsibilities as mortgagee of the property.
Deposit of Title Deeds (Section 76 PLA): A purchaser can also require the vendor to deposit a duly executed transfer document with a prescribed authority (such as a solicitor) to be held in trust until the time for performance of the contract arrives, the contract is discharged by performance or otherwise, or upon an order of the court.

Protecting Your Position

The statutory protections imposed for the benefit of a buyer under an instalment contract can be significant for sellers, and may impact a seller’s financial liquidity, control over their property, and ability to enter into subsequent contracts following a buyer’s default. Unfortunately, it is often the case that instalment contracts are inadvertently entered into, and the statutory protections are enlivened without the knowledge or intent of either the buyer or seller.

To avoid creating an instalment contract, particular care must be taken with:

ensuring a deposit and any associated payments do not exceed the prescribed percentage of 10% (20% for off-the-plan purchases) of the purchase price;
any agreements for additional payments under a contract prior to settlement, such as license fees or early possession payments, are separate from the contract;
accepting non-refundable payments from a buyer when agreeing to extensions to critical dates in the contract that do not entitle the buyer to receive conveyance of the property.

Before entering into any contract for the sale or purchase of residential property , we recommend seeking legal advice to ensure that you are not unknowingly entering into an instalment contract. Instalment contracts can present both opportunities and challenges in property transactions. This article aims to clarify those key points for you. At CJM Lawyers, we pride ourselves on offering clear, personalised advice to ensure your property dealings are smooth and secure. Our trusted property team can assist and guide you through contract reviews, negotiating terms, identifying any potential risks and protecting your interests. Speak to a member of our team today to help safeguard your investment.

Disclaimer: This article provides general information only and does not constitute legal advice. It is essential to seek specific professional legal advice tailored to your individual circumstances.

The Benefits of Engaging a Lawyer in Debt Recovery

Tue, 05 Aug 2025 05:23:47 GMT

1. Legal Experience and Strategic Guidance

Lawyers possess a comprehensive understanding of debt recovery laws , including relevant statutes, regulations, and procedural requirements. They can assess the merits of a claim, advise on the most effective recovery strategies, and ensure compliance with all legal obligations, thereby reducing the risk of procedural errors that could jeopardize the claim.

2. Professional Communication and Negotiation

3. Efficient Litigation and Enforcement

4. Risk Mitigation and Compliance

Debt recovery efforts must comply with laws and regulations. Lawyers can ensure that all actions taken are lawful, thereby minimizing the risk of counterclaims or regulatory penalties.

5. Maximizing Recovery and Cost Efficiency

By leveraging legal tools such as statutory interest, costs recovery, and security interests, lawyers can maximize the amount recovered. Their ability to assess the debtor’s financial position and identify available assets further enhances the prospects of successful recovery.

Conclusion

Engaging a lawyer in the debt recovery process provides creditors with legal experience, strategic advantage, and procedural efficiency. This professional support not only increases the likelihood of recovering unpaid debts but also ensures that the creditor’s rights are protected throughout the process.

Recovering unpaid debts can be stressful and complicated . After reading this article, know that CJM Lawyers is here to help you navigate the process with confidence. We tailor our approach based on your unique situation through practical and reliable support to help you recover what you’re owed. This can be done through negotiation, mediation, and/or legal action. Our team works closely with you to protect your rights and achieve the best possible result.

Protecting Your Intellectural Property

Wed, 18 Jun 2025 05:43:31 GMT

Protecting your intellectual property

Last week, it was revealed that the US company behind the Oreo has commenced proceedings against Aldi. The US company alleges that Aldi has copied their distinctive Oreo packaging for its own chocolate sandwich biscuits, in a manner which is likely to mislead and deceive customers. This high-profile dispute is a timely reminder of the critical importance of intellectual property protection for your business .

This case underscores the need to take proactive steps to safeguard your intellectual property.

The team at CJM Lawyers can ensure that your business’ intellectual property is protected, including through the:

1) Registration of trade marks : This includes not only your brand name and logo, but also extends to aspects of your business which helps customers distinguish you from your competitors.

2) Licensing of your Intellectual Property: Where you wish to license your intellectual property to someone else, it is essential that you have a comprehensive agreement in place to ensure that each of the parties’ rights are clearly defined and protected.

3) Registration of patents: A patent serves to protect against your ‘inventions’. The registration of a patent over your products can be critical to ensuring that your products are protected from competitors seeking to copy your invention.

4) Resolution of Disputes : If you suspect your intellectual property rights have been infringed, it is important to act promptly to mitigate and limit any damage that the infringement may cause to your business. CJM Lawyers is experienced in all aspects of intellectual property protection and enforcement. If you have concerns about your intellectual property or believe your rights may have been infringed, please contact us to discuss how we can help you protect your most valuable business assets.

Disclaimer: This article is for general understanding and should not be used as a substitute for professional legal advice. Any reliance on the information is strictly at the user's risk, and there is no intention to create a lawyer-client relationship from this general communication.

The April 2025 Changes to the Franchising Code of Conduct

Wed, 11 Jun 2025 06:57:25 GMT

This is a subtitle for your new post

The April 2025 Changes to the Franchising Code of Conduct

Part One

This article was originally intended to be a brief summary of those changes to the Franchising Code of Conduct (“the Code”) that were introduced on 1 April 2025. During our review of these changes, with a little breathing room in time, it was quickly decided that at least two parts would be required to give proper justice and thought to the amendments to the Code.

Though we say “amendments to the Code”, this new Code is, essentially, a remake, being able to be differentiated before and after with certainty due to a new numbering system, order of topics and changes extending beyond the more usual ‘addition of sub-sections approach’.

This first part will concentrate on those changes that we believe are largely aimed to increase protections for franchisees for specific circumstances that have come to pass since the initial implementation of the Code. These circumstances may not have initially been planned for or anticipated, and upon their happening may have caused an imbalance of power necessitating redress.

The next of our articles on the topic will detail some of the changes to mechanics and the logistics of documentation and accounting principles for franchisors.

Restraint of Trade

By way of the new Section 42, a franchisor is now prohibited from entering into a franchise agreement that contains a restraint of trade provision that would apply if a number of provisos are met, but essentially, if the agreement contained an option to renew or extend the agreement and the franchisor did not renew or extend the agreement.

This is a particularly specific addition to the Code and does feel as a reaction to a factual circumstance having occurred where a restraint of trade was used in a less than conscionable manner.

This new Section 42 applies to all franchise agreements that were entered into, transferred renewed or extended on or after 1 April 2025.

Early Termination Compensation

The new Section 43 is relevant to all franchise agreements that are not new vehicle dealership agreements.

By way of Section 43(2), franchisors are prohibited from entering into a franchise agreement unless the agreement provides for the franchisee to be compensated if the agreement is terminated before it expires because the franchisor:

Withdraws from the Australian market;
Rationalises its networks in Australia; or
Changes its distribution models in Australia

The agreement must specify how compensation is to be determined, with specific reference to:

Lost profit from direct and indirect revenue;
Unamortised capital expenditure requested by the franchisor;
Loss of opportunity in selling established goodwill; and
Costs of winding up the franchised business

Pursuant to the new sections 43(3) and (4), franchisors are prohibited from entering into a franchise agreement unless the agreement requires the franchisors to buy back or compensate the franchisee for specific equipment or items purchased by the franchisee, in the event the franchise agreement is terminated before its expiry date under certain circumstances. These specific items and equipment are:

Outstanding stock purchased by the franchisee that was specified by the franchisor and required to operate the franchise; and

All essential dedicated equipment and branded product or merchandise purchased by the franchisee that was specified by the franchisor and required to operate the franchise, and that cannot be repurposed for a similar business.

There is a grace period for franchisors in the implementation of these provisions, with them applying to all franchise agreements that are entered into, transferred, renewed, or extended on or after 1 November 2025.

Reasonable Return on Investment

An interesting new provision is that contained in the new Section 44. Again, with a grace period and applying from 1 November 2025.

This Section provides a positive obligation that a franchisor must not enter into a franchise agreement unless that agreement provides the franchisee with a reasonable opportunity to make a return, during the term of the agreement, on any investment required by the franchisor as part of entering into, or under, the agreement.

What the extent of this obligation emplaced on franchisors is, naturally, yet to be tested.

Moving Forward

As always, complex contractual agreements are not a one size fits all situation, all contracts have their own nuances and specificity and individual legal advice should be sought by experienced practitioners prior to entering into any new commercial agreement, particularly franchises.

Understanding Financial Agreements

Tue, 13 May 2025 00:01:21 GMT

What is a Financial Agreement?

A Financial Agreement is a legally binding document made under the Family Law Act 1975 that sets out how a couple’s property, finances, and spousal maintenance will be dealt with in the event of a relationship breakdown .

Types of Financial Agreements:

Under the Act, different sections apply depending on the stage of the relationship:

Before marriage - Section 90B - A pre-nuptial agreement made before a couple marries.
During marriage - Section 90C - Made during the marriage (often updated or made after a 90B agreement).
Before de facto relationship - Section 90UB – Made before a de facto relationship begins.
During de facto relationship - Section 90UC - Made during a de facto relationship.

What Can a Financial Agreement Cover?

Division of assets and liabilities
Superannuation splitting
Spousal maintenance
Future financial arrangements
Ownership of property and debts

Why Have a Financial Agreement?

Clarity & Certainty - Protect your assets and agree on financial terms upfront to avoid disputes later.
Avoid Litigation - A valid agreement can exclude the Family Court from intervening in financial matters after separation.
Flexibility - Tailor the agreement to suit your specific needs and circumstances. Peace of Mind - Plan for the future with confidence, knowing that your financial affairs are sorted.

Key Requirements:

Both parties must receive independent legal advice
Agreement must be in writing and signed by both parties
Complies with strict legal requirements under the Family Law Act 1975

Financial Agreements are complex documents. It’s essential to seek advice from a qualified family lawyer to ensure your agreement is valid and enforceable. Fixed fee service available. For more information, please contact us through 1300 245 299 or via email at info@cjmlawyers.com.au .

Family Law Amendment Act 2024: A Closer Look at Key Reforms

Thu, 13 Mar 2025 07:00:52 GMT

If you're dealing with property disputes or family law issues , staying informed about these changes is crucial. Contact our team today for trusted professional advice on how these reforms could impact your case. We're here to guide you every step of the way.

The Family Law Amendment Act 2024 marks a pivotal moment in Australia’s legal framework for family law. By addressing long-standing issues in property settlements and family violence considerations, the Act strengthens protections for vulnerable parties and introduces critical updates to existing practices. Below, we delve into the Act’s most significant changes and their implications. The amendments will take effect from 10 June 2025.

1. Property Reforms: Codifying Key Principles

The Act codifies practices previously developed under common law, ensuring consistency and clarity in how courts handle property settlements.

New Requirements for Property Alterations

The legislation mandates 2 additional steps a court must take when altering property interests:

Identify Existing Rights: Courts must assess the legal and equitable rights of each party, accounting for all assets and liabilities (identifying the property pool).
Evaluate Contributions and Circumstances: Under amended sections 79 and 90SM, courts consider both parties’ financial and non-financial contributions, as well as their current and future circumstances.

Family Violence and Property Settlements

In a significant development, the Act explicitly recognises the impact of family violence in property proceedings. Courts must now consider how family violence:

Hindered a party’s ability to contribute financially or otherwise.
Imposes ongoing costs, such as counselling or medical expenses.

New Examples of Financial Misconduct

To address inequities in property settlements, the Act outlines instances of financial misconduct, such as:

Material Wastage: Gambling or other reckless financial behaviour.
Unsecured Liabilities: Debts incurred without mutual consent.

2. Economic Abuse as Family Violence

The definition of family violence now encompasses economic and financial abuse, reflecting a broader understanding of abuse in family dynamics. Examples include:

Withholding financial support for basic living expenses or child support.
Coercing dowry payments.
Controlling employment opportunities or superannuation.

These changes offer a stronger legal foundation for victims, enabling them to seek redress and fair outcomes in property proceedings.

3. Pets in Property Settlements

The Act introduces specific provisions for resolving disputes over companion animals. Courts are limited to two options:

Award ownership of the pet to one party.
Order the pet to be sold.

Decisions are informed by factors such as:

Who primarily cared for and acquired the pet.
Any instances of family violence involving the animal.

This framework simplifies disputes while ensuring the pet’s welfare is considered.

4. Extension of Less Adversarial Trial (LAT) Process

Originally designed for child-related matters, the LAT process now applies to property disputes. Key advantages include:

Reduced formalities and delays.
Enhanced safety measures for victim-survivors, requiring courts to inquire about family violence risks.

5. Reinforced Duty of Financial Disclosure

Under the Act, parties in financial proceedings have a continuous obligation to provide full and frank disclosure of all financial assets and liabilities. Non-compliance carries significant consequences, including:

Costs orders against the non-compliant party.
Adjustments to property entitlements.

Legal practitioners must now proactively advise clients of these duties and the penalties for failing to meet them.

Conclusion

The Family Law Amendment Act 2024 signifies a progressive shift towards a more equitable and transparent family law system. By codifying key principles, expanding the definition of family violence, and streamlining processes, the Act addresses critical gaps in the legal framework.

For individuals navigating property disputes or other family law matters, understanding these changes is essential. For further advice on how these reforms may affect your case, reach out to our team for guidance.

Know the Signs - Understanding Corporate Oppression Under the Corporations Act

Tue, 14 Jan 2025 07:46:21 GMT

Understanding these aspects of corporate oppression is crucial for any shareholder to ensure that their interests and investment are protected from any oppression. If you are in a position where you are being oppressed as a shareholder , the experienced team at CJM Lawyers can work with you to advise on and resolve any dispute which has or may arise.

Sections 232 and 233 of the Corporations Act 2001 (Cth) provide the members (the shareholders) of the company a claim and relief against the conduct of a company which is deemed to be oppressive or commercially unfair.

As a member of a company, it is important to be able to understand and recognise conduct which may amount to corporate oppression to protect your investment. Conversely, directors of a company must be aware of the potential implications of their conduct which may be found by a Court to be oppressive.

The experienced team at CJM Lawyers is well versed in protecting our client’s interests in the event of a corporate oppression claim .

What is Corporate Oppression?

Corporate oppression is dealt with by two sections of the Corporations Act. Section 232 of the Act establishes when the conduct of a company’s affairs will amount to corporate oppression while section 233 of the Act prescribes the orders a Court may award to remedy the oppression.

The remedies that the Court may award are extremely broad and may make any order it considers appropriate. Although, the two most common remedies seen in cases of corporate oppression are a share buy-out or the winding up of the company.

Who Can Be Oppressed?

Under the Corporations Act, corporate oppression may arise where either (a) the oppression is contrary to the interests of the members as a whole or (b) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members as a whole. In either case, the oppression must affect the members (shareholders).

In the majority of corporate oppression cases, it is often the minority shareholders in small to medium sized companies who will be oppressed because these members do not have the freedom to readily dispose of their shareholding. Shares in small companies are not liquid to the same extent as a large company as there is often no market or demand for those shares. Accordingly, these members are often unable to leave the company where they are being oppressed.

What Constitutes Corporate Oppression?

The conduct which may be found to be oppressive is vast. While it has proven difficult for the Courts to assign one definitive test, conduct which traditionally amounts to corporate oppression is seen as conduct that is ‘commercially unfair.’ The following are examples of conduct that may amount to corporate oppression:

Refusing requests for financial information - Denying or excluding shareholders from accessing the company’s records.
Diversion of corporate opportunity – For example, entering into transactions that benefit certain shareholders at the expense of others.
Director’s failure to act in the interests of the company – For example, denying or preventing the company from taking a corporate opportunity.
Restricting Dividends – The redirection of earnings or otherwise the structuring of the company’s financials in order to dilute a shareholder’s entitlement to dividends.

Recognise Insolvency Signs: Stay Financially Prepared

Tue, 14 Jan 2025 07:42:59 GMT

Would you recognise the warning signs of insolvency?

Many do not until it is too late. Whether you are a company or an individual, taking a proactive approach to addressing insolvency requires knowledge of when you may be insolvent. After all, forewarned is forearmed.

In the seminal case of ASIC v Plymin & Ors (2003) 46 ACSR 126, the Court set out a non-exhaustive list of indicators of insolvency:

Continuing losses.
Liquidity ratios below 1 (meaning your liabilities exceed your assets).
Poor relationships with financial institutions including an inability to borrow further funds.
No access to alternative finance.
Inability to raise further equity capital.
Suppliers placing the company on cash on delivery or otherwise demanding special payments before resuming supply.
Creditors paid outside trading terms.
Issuing post-dated cheques and dishonoured cheques (albeit this has fallen by the wayside with the adopting of EFT’s).
Solicitors’ letters of demand, court summons or warrants issued against the company.
Payments to creditors in rounded sums which are not identified against any particular invoice (ie you own them so much, you are just paying what you can).
Inability to produce timely and accurate financial statements.

Of course, the above is non-exhaustive. We have complied some further indicators based on our recent experiences with clients:

Unable to pay wages or bills.
Cannot pay tax debts.
Receipt of a Director Penalty Notice (DPN-see our article on DPNs).
No business plan.
Loss of key personnel.
Director disputes or resignations.

If you are experiencing three or more of the above, we strongly recommend that you book an initial consult with one of our insolvency person today.

Remember, just because you are insolvent, doesn’t mean you have to enter liquidation.

Our team of insolvency partner are well versed in restructuring SME’s using small business restructuring process (see our article on this) or else through the voluntary administration process.

How long do you have to bring a family provision claim to contest a Will?

Wed, 18 Dec 2024 01:12:21 GMT

There are strict time limits that apply for an eligible person to contest a will. Every state and territory in Australia has varied time limitations, so it is of the utmost importance that you contact your solicitor as soon as possible should you believe you have been left without adequate provision in a will.

This article lists the time limits to bring a claim across Australia and sets out the requirements to make a claim outside of the time limits.

Queensland

In Queensland, the Succession Act 1981 sets out that an eligible person is required to notify the executor of a claim within 6 months of the date of the death and that the ensuing Family Provision Claim must be filed within 9 months of the date of death. The Court will only consider a claim outside of the time limit if you have a compelling reason, which will take into account the length of the delay, whether the estate has already been distributed, and that you have a genuine excuse.

New South Wales

The NSW Succession Act 2006 provides that a claim must be filed within 12 months of the date of death. As in Queensland, the Court will only consider a claim outside of the time limit if you have a compelling reason, which will take into account the length of the delay, whether the estate has already been distributed, and that you have a genuine excuse.

Victoria

The Vic Administration and Probate Act 1958 states a claim must be filed within 6 months from the date of probate being granted. Any late claim must have the approval of the court, which will only be given if the claim will not prejudice the estate/beneficiaries. Of particular importance, it is also noted that a late claim will not be heard if the estate has already been distributed.

South Australia

The SA Inheritance (Family Provision) Act 1972 provides for the same 6-month time limit from when probate was granted as is provided for in Victoria. However, it has a more relaxed out-of-time claim provision, similar to that in NSW and Queensland.

Northern Territory

In the Northern Territory Family Provision Act 1970, a family maintenance claim must be filed within 12 months of a probate being granted, and an out-of-time application will only be considered with the special leave of the court.

Western Australia

The WA Family Provision Act 1972 has the same time limit as Victoria, being claims must be filed before 6 months from the date of probate being granted. However, the court only has the authority to allow late applications if they see fit.

Australian Capital Territory

As in WA and Vic, the Family Provision Act 1969 states a claim must be filed before 6 months from the date of probate being granted, and the court only has the authority to allow late applications if there is sufficient cause.

Tasmania

The TAS Testators Family Maintenance Act 1912 has the shortest notice period in Australia, being 3 months from the date of probate being granted. Similar to Victoria, any claim filed after this deadline must have the approval of the court, which will consider the impact on the parties involved. A late claim will not be heard if the estate has already been distributed.

Please contact our dedicated team at CJM Lawyers to discuss the time limits to your potential claim upon an estate.

New Skills in Demand visa and pathway to Permanent Residence

Wed, 18 Dec 2024 01:12:17 GMT

On 07 December 2024, the Department of Home Affairs officially launched the Skills in Demand (SID) visa (subclass 482) to replace the Temporary Skill Shortage (TSS) visa operating under the same subclass 482. The SID visa allows the worker to stay in Australia for up to four years, with a pathway to permanent residency through the Employer Nominated Scheme (subclass 186) visa in the Temporary Residence Transition Stream.

The SID Visa Has Three Streams:

Core Skills Stream : For individuals with occupations listed in the Core Skills Occupation List (CSOL) and meeting the Core Skills Income Threshold (currently at $73,150).
Specialist Skills Stream : For highly skilled individual with any occupation from the Australian and New Zealand Standard Classification of Occupations (ANZSCO) excluding trades workers, machinery operators and drivers, and labourers. The nominated positions must meet the Specialist Skills Income Threshold (currently at $135,000).
Labour Agreements Stream : The TSS Labour Agreement stream will be integrated with the SID visa, and this allows sponsors to create labour agreements to meet their needs for specific industries. This pathway is suitable for applicants with essential skills and income lower than $73,150.00.

The New Skills In Demand Visa Features The Following Changes:

Lower work experience period: The requirement of relevant work experience in the past five years has been reduced to one year down from two years. This may also include part time/casual experience.
Mobility in employment: the applicant has 180 days in a single period, to find a new sponsor, which offers employees greater flexibility to move between sponsors.
Relatively low Language Requirement: The applicant only requires an English level equivalent to a minimum score of IELTS 5.0 or PTE 36 in each test component.
Pathway to PR: All SID visa streams may lead to permanent residence via the Employer Nominated Scheme (subclass 186) Temporary Residence Transition stream, unlike the TSS visa which only allowed it for occupations in the medium and long term occupation list.
Employment Flexibility for ENS Visa: The applicant does not need to re-accumulate the 2 year full time work experience if they have changed the sponsor. Employment periods with any sponsor in Australia will count toward the two-year requirement for the Employer Nominated Scheme (subclass 186) Temporary Residence Transition stream.
Same Sponsor eligibility: The sponsor’s eligibility criteria remain the same, so there are no further burden imposes on the business owner.
New Occupation list: SID visa includes some occupations that is vital to business need but was not included in TSS visa, i.e. childcare worker, office manager, building and engineering technician nec, etc.

The new SID visa provides a more transparent and promising pathway for immigration in Australia. We are here to assist you to evaluate and consider the appropriate occupation for the applicable visa stream as well as meeting the visa and sponsorship eligibility. Our skilled immigration law team can help you navigate the journey towards permanent residency smoothly or to attract and retain your skilled workers. If you have any questions, please don't hesitate to contact us.

How AI Helps Us Help You: The Balance of Technology and Trust at CJM Lawyers

Mon, 11 Nov 2024 06:43:02 GMT

Staying ahead of the everchanging technology landscape in law often means embracing innovation. Generative AI, with tools like ChatGPT and Google’s Gemini, among other Large Language Models (LLM’s), has been disruptive in the Australian legal profession for its ability to streamline many time-consuming tasks, allowing lawyers to focus on strategic, high-value work. However, with great progress comes greater responsibility, and a new reality is emerging that all legal professionals must consider, specifically; where do we draw the line between AI assistance and human judgment?

A Cautionary Tale from the Courtroom

The potential dangers of over-reliance on AI in legal work have moved from hypothetical discussions to real-world consequences throughout a number of cases. For example, the now-infamous Mata v Avianca case in the U.S. where lawyers unwittingly cited fabricated cases generated by AI. Without oversight, AI can mislead even the most seasoned practitioners.

Closer to home, this concern was further raised by Chief Justice Helen Bowskill, who highlighted the risks at the recent AILA National Conference on the Gold Coast.

Instances like Zhang v Chen [2024] BCSC 285, where a British Columbia lawyer faced sanctions for citing non-existent precedents, and more recently, in DPP v Khan [2024] ACTSC 19, the ACT Supreme Court raised concerns about AI-generated character references that lacked authenticity, further spotlighting the urgent need for cautious use.

A Double-Edged Sword

Generative AI, undeniably, offers numerous benefits. At CJM Lawyers, we recognise that these tools can reduce the time spent on routine tasks, allowing our legal teams to be more agile and responsive to clients' needs. By automating mundane processes, we are able to pass on cost savings to you, our clients, while dedicating more of our time to deepening our experience in our practice areas.

However, we are also particularly aware that AI’s capabilities come with potential risks, from “hallucinated” legal citations to misapplied precedents and inherent biases. Our awareness shapes our commitment to using AI thoughtfully and responsibly, which allows us to mitigate any inherent risk it poses with the overarching benefit AI offers.

Courts in Australia are already adopting guidelines that place the onus on lawyers to verify and fact-check AI-generated content to hold us accountable for our progressive AI use.

At CJM Lawyers, we believe that while AI can assist, it can never replace the sound judgment and oversight of a dedicated legal professional . The law remains, at its heart, a human endeavour that is driven by the nuances of experience, empathy, and ethical commitment.

Disclaimer: This article is for general understanding and should not be used as a substitute for professional legal advice. Any reliance on the information is strictly at the user's risk, and there is no intention to create a lawyer-client relationship from this general communication.

Recovering Unpaid Debts

Mon, 11 Nov 2024 06:37:35 GMT

In the current economic climate, the instances of individuals and companies failing to pay their debts is increasing. When a debtor fails to pay a debt to you on the agreed terms, the debt becomes delinquent or in default.

Why do people default? Either because they are unable or are unwilling to pay their debt. Regardless of the reason, we can assist with l egal recovery of debts owed to you or your business .

To influence the debtor to pay the debt or to recover the debt owed to you we can take the following legal steps:

Issue a Letter of Demand on law firm letterhead. This adds weight and demonstrates you are serious about recovering the debt.
If the debtor fails to respond to our Letter of Demand, we commence a debt recovery proceeding in the court. We can claim interest on the debt and ask the court to grant legal costs against the debtor.
We can support you in obtaining a judgement which is enforceable against the debtor. Avoiding a judgement is a strong deterrent and provides an incentive for the debtor to pay because of the lasting effect on their credit history.
If the debtor continues to avoid payment, we can apply to the court to have the debtor’s financial details disclosed, have their wages redirected and to take a security over any property owned by the debtor.

Depending on the jurisdiction, you can make a debt claim up to 6 years after the debt became due. Once you obtain a judgement, the judgement can be enforced for 12 years after the judgement has been obtained.

Disclaimer: This article is for general understanding and should not be used as a substitute for professional legal advice. Any reliance on the information is strictly at the user's risk, and there is no intention to create a lawyer-client relationship from this general communication.

A Couples Guide to Binding Financial Agreements (BFAs)

Tue, 15 Oct 2024 01:08:21 GMT

Binding Financial Agreements (BFAs) are legal contracts that help couples (both married and de-facto) manage their financial arrangements in the event of a relationship breakdown. BFAs can be made before cohabitation (pre-nuptial), during cohabitation, or after separation, offering couples flexibility in protecting their assets and ensuring financial clarity.

What is a Binding Financial Agreement?

A BFA outlines how a couple’s assets and financial resources will be divided if their relationship ends. It can also include provisions for spousal maintenance and other financial matters, helping couples avoid court intervention by providing clear, private agreements.

Types of Binding Financial Agreements

Pre-Cohabitation Agreements (Pre-Nuptial) : Created before living together or marriage, these agreements protect assets like property, businesses, or inheritances, reducing potential disputes if the relationship ends.
During Cohabitation Agreements : These are made while the couple is living together or married. These agreements also protect assets like property, businesses, or inheritances, reducing potential disputes if the relationship ends. They are also used to address changes in circumstances, allowing for updated financial arrangements.
Post-Separation Agreements : After separation, BFAs formalise asset division and financial support, avoiding costly court proceedings by providing a clear plan for distribution.

Why Consider a BFA?

BFAs offer certainty, allowing couples to control asset division and avoid court. They are cost-effective, flexible, and tailored to meet each couple's specific needs. We are often able to offer a fixed-fee service.

BFAs can be a valuable tool for couples at any stage of their relationship. By understanding the different types of BFAs and their benefits, couples can make informed decisions to protect their financial interests. As always, it is essential to seek independent legal advice to ensure the agreement is legally binding.

Our professional family law team is dedicated to helping navigate BFAs, providing guidance and personalised support to ensure financial interests are protected.

Disclaimer: This article is for general understanding and should not be used as a substitute for professional legal advice. Any reliance on the information is strictly at the user's risk, and there is no intention to create a lawyer-client relationship from this general communication.

Queensland Sunset Dates – The Pursuit of Fairness

Tue, 15 Oct 2024 01:04:40 GMT

Long has buying a house, unit or land ‘off the plan’ been commonplace in Queensland. The pressure of increasing demand and a supply that is struggling to keep pace necessitate forms of home acquisition that are not necessarily commonplace in years gone by. However, with no end in sight to the desire to live in the Sunshine State, and enjoy the lifestyle that it has to offer, failing some miraculous materialisation of new homes, off the plan purchases are more than likely here to stay, and indeed, become more and more the norm.

What is it to Purchase ‘Off the Plan’?

To buy a home ‘off the plan’ is to enter into a contract to purchase a lot prior to it being registered with the Queensland Department of Resources as an individual property. In other words, the contract will describe the lot as a ‘proposed lot’ contained within a larger parcel of land, usually shown on a proposed plan of subdivision of the larger parcel.

There are certainly advantages of purchasing ‘off the plan’, it is certainly normal that the purchase price is likely less than if the lot was its own standalone lot as at the contract date. It is, perhaps, accurate to say that a more interdependent relationship is created between the seller and the buyer, as the seller likely needs to show their financiers the contracts for the subdivided lots in order for their funding to be approved and received. Thus, through this relationship both parties are placed in an advantageous position though the buyer’s willingness to be bound to purchase prior to registration, and the seller’s willingness to account for the buyer’s investment into their project, usually in its infancy.

The drawbacks are likely obvious. The primary to be addressed is the uncertainty as to timing. As a lot of work needs to be done to register a subdivision into the individual lots, no certain date may be provided for when the buyer will become the owner of the lot. From a legal perspective, this is expressed that settlement will occur a set number of days after the seller has completed certain key milestones up to the creation of the proposed lot as a standalone parcel whose ownership is capable of being transferred to the buyer.

What is a Sunset Date?

A sunset date is a date by which all of the key milestones must be achieved, and in practice, is the determining factor to the last day that settlement may occur.

The State of Queensland has statutory limits on the maximum time after the contract date that a sunset date may be:

If you are purchasing within a community titles scheme (being units, apartments, townhouses etc.), then it is five and a half years after the contract date; or
If you are purchasing land, then it is eighteen months after the contract date.

Usually, contracts contain the provision that if settlement does not occur by the above, or shorter dates, then either party may rescind the contract, with any deposit to be returned to the buyer.

An Opportunity for the Unscrupulous

Sadly, it is human nature that some may seek to take unfair advantage of the operation of the law for mercenary or other reasons. This is certainly not; however, to say that all or even anywhere near the majority of sellers of off the plan lots would do so.

In recent times, the ability for a seller to terminate contracts after the sunset date has been put under the magnifying glass of public opinion. It is a fact that housing prices in Queensland have risen dramatically over a short period of years, and a lot that was previously marketable at one price may now be saleable for hundreds of thousands more.

The accusation that we have heard countless times is that a seller may be unjustly delaying the creation of the individual lots in order to exercise their sunset date rights, and resell at a far greater profit.

Once more, this is not all sellers, but a very small minority.

Protections to Buyers

Hearing the attention being given to this legal space, on 22 November 2023, the Queensland Government enacted some statutory protections to buyers of off the plan land (but not units). From its enaction, and applying to any off the plan land contract entered into but not settled prior to 22 November 2023, a seller may not terminate the contract unless they have obtained either:

The consent of the buyer; or
An order from the Court allowing for the termination, which would necessitate the seller proving that it has done all things reasonably possible and that it would be just and equitable to terminate the contract.

To reiterate, this only applies to off the plan land, not units. When such protections are to be allowed to unit buyers is not within our knowledge.

Moving Forward

Sunset dates and clauses allowing for their operation are one of, if not the, most nuanced aspects of off the plan sales contracts. Care should be taken both as a buyer and as a seller in their drafting and understanding prior to entering into a contract.

Our offices have extensive experience in acting for both sellers and buyers of off the plan lots, and if you are considering being either we would be pleased to offer our assistance and ensure that you fully understand the terms of these contracts and are an educated buyer or seller.

What happens if a beneficiary of my Will goes missing?

Tue, 13 Aug 2024 01:42:04 GMT

With the return of overseas travel and the ever-developing ability for people to live and work all over the world, locating the after the death of a testator has become more difficult. This issue has furthered the need to ensure you have a Will that is properly drafted by an experienced Solicitor, who can do more than just prepare your Will, but also ensure that there are enough details about your estate and the beneficiaries of your Will to ensure that your Executor can locate your beneficiaries after you have passed away. So, what happens if a Beneficiary cannot be found? Several options are available to your Executor. However, in the worst-case scenario, they may need to apply for a Benjamin Order from the Supreme Court. A Benjamin order was first established by the Chancery Court decision in re Benjamin; Neville v Benjamin [1902] where the court decided that it could order the redistribution of a deceased estate when a missing beneficiary is presumed dead. A Benjamin Order was more recently considered by the court in the matter of Application of Roberts [2023] NSWSC in which the beneficiaries were the deceased's five children - one of the five children had last been seen on a hitchhiking trip with his fiancé at Byron Bay in 1979 and had never been seen or heard from since. After considering all the evidence available, the Court ultimately determined to re-distribute the estate amongst the remaining beneficiaries – but only after a long and expensive hearing at the expense of the Estate.

Contact us today to ensure your estate is divided according to your wishes.

Groundbreaking Changes: The Property Law Act 2023 (Qld)

Fri, 05 Jul 2024 02:59:47 GMT

In a landmark development for Queensland's legal landscape, the Property Law Act 2023 (Qld) has been enacted, ushering in significant reforms aimed at modernizing property transactions and enhancing legal protections for property owners across the state.

Key Provisions and Implications

The Property Law Act 2023 (Qld) introduces several key provisions that promise to streamline processes and clarify rights and responsibilities in property dealings:

Electronic Conveyancing : Perhaps the most anticipated change, the Act mandates the transition to electronic conveyancing for all property transactions. This shift aims to reduce paperwork, expedite transactions, and enhance security and transparency in property dealings.
Strata Titles Reform : The Act includes comprehensive reforms addressing strata title properties. These reforms clarify maintenance responsibilities, improve dispute resolution mechanisms, and strengthen governance frameworks within strata communities.
Consumer Protections : Recognizing the imbalance of power in property transactions, the Act introduces enhanced consumer protections. This includes stricter disclosure requirements for sellers and developers, ensuring buyers are fully informed before making property investments.
Sustainability and Development : Emphasising environmental sustainability, the Act encourages property developments to meet stringent environmental standards. It promotes the integration of sustainable practices into property development and management.
Tenancy Reforms : The Act also incorporates reforms aimed at balancing the rights of landlords and tenants. It introduces clearer guidelines on rent increases, maintenance responsibilities, and dispute resolution, aiming to create a fairer renting environment.

These reforms are long overdue and align Queensland with global best practices in property law. They will undoubtedly improve efficiency and transparency in property transactions. All stakeholders need to undertake comprehensive education and training to facilitate the smooth implementation of electronic conveyancing and other new provisions.

Looking Ahead

As Queensland embraces the Property Law Act 2023 (Qld), stakeholders anticipate a period of adaptation and adjustment. The property lawyers at CJM Lawyers are here to assist property developers and consumers alike who are encouraged to familiarise themselves with the Act's provisions to navigate the evolving landscape of property law effectively.

With these reforms, Queensland positions itself at the forefront of property law innovation, aiming to enhance legal certainty, protect consumer interests, and promote sustainable development practices across the state.

For further insights into how the Property Law Act 2023 (Qld) impacts your property transactions or if you need assistance with a legal matter about property law, please contact CJM Lawyers on 1300 245 299 or contact us.

Australia's Changing Immigration Landscape in 2024

Fri, 05 Jul 2024 02:59:42 GMT

What Business Owners Need to Know

Australia is not only attractive for its relaxed lifestyle, stunning natural beauty, and proximity to exotic destinations, but it also provides a wealth of opportunities for entrepreneurial minds. However, 2024 has been a year of significant change for the Australian government, particularly within the immigration department. Affected by rising prices, property scarcity, and a general increase in the cost of living, the Australian government has implemented several changes aimed at ensuring the wellbeing of its people while fostering national progress. In this article, we will explore these changes and their impact on business owners looking to settle in Australia.

The End of Business and Investor Visas

For many years, wealthy investors and experienced business owners have utilised the Business Innovation and Investment (BIIP) 188 visa to immigrate to Australia. The BIIP 188 visa included various streams, such as the business innovation stream with investment to operate a new or existing business, often requiring points testing and business experience. In contrast, the investor and significant investor streams required a minimum investment of A$2.5 million and $5 million respectively, but did not mandate points testing or business management experience. The business innovation stream targeted a broader range of business activities and smaller-scale investments, while the investor streams were aimed at high-net-worth individuals making significant financial contributions.

As of early 2024, the Australian government decided to discontinue this visa, citing long-standing concerns about their misuse. Investigations revealed that these schemes were yielding poor economic benefits and were being exploited by corrupt officials to launder money.

Australia’s Strategy: Skilled Visas

To mitigate the impact of discontinuing the BIIP 188 visa, the Australian government is increasing the issuance of Temporary Skill Shortage Visas (subclass 482), commonly known as TSS visas. According to the government, these visas are aimed at individuals capable of making outsized contributions to Australia.

Starting from 23 November 2024, the work experience requirement for the TSS visa will be reduced from two years to one year for all applicants. This strategic shift is intended to attract more skilled workers who are more likely to work their way up from entry-level positions to permanent residency, rather than allowing wealthy individuals to remain in the country for questionable purposes.

TSS visas are more challenging to obtain than the popular work and holiday visas (subclass 417 and 462), as they require applicants to be employed in a profession listed on the government’s annually reviewed skilled occupation list. While the status of work and holiday visas remains unchanged, further updates from the government are anticipated soon.

National Innovation Visa

In the recent federal budget announcement, a new National Innovation visa was introduced to replace the BIIP visa and the Global Talent (subclass 858) visa by late 2024. This visa is tailored for exceptionally skilled migrants who are expected to drive growth in critical sectors of national importance.

The National Innovation visa is anticipated to offer a pathway to permanent residency for high-performing entrepreneurs, global researchers, and significant investors. Although specific requirements have not been finalised, the application process is likely to be rigorous. Potential aspects may include thorough evaluations of applicants' potential contributions to Australia, provisions for monitoring and possible visa cancellation if conditions are not met, and an emphasis on non-financial criteria such as business acumen, connections to Australia, and a track record of innovation.

While details such as eligibility criteria and the exact application process remain undisclosed, there is speculation that the National Innovation visa could incorporate elements similar to those found in the current BIIP and Global Talent visas.

Conclusion

The changes in Australia’s immigration policies reflect the government’s efforts to address economic and social challenges while fostering a more inclusive and sustainable future. Business owners and investors looking to make Australia their new home will need to navigate these new regulations and explore alternative pathways to residency.

At CJM Lawyers , we understand the complexities of Australia's evolving immigration landscape and are here to provide professional guidance tailored to your business needs. Led by Jake Jeong, our seasoned immigration lawyer fluent in three languages, we are dedicated to in assisting business owners looking to relocate and thrive in Australia. Whether you are navigating skilled visa applications, exploring investment opportunities, or seeking clarity on recent policy changes, our team is dedicated to ensuring a smooth and successful transition for you and your business.

To discover more about immigrating to Australia, get in touch with the skilled registered migration lawyers at CJM Lawyers. Schedule a consultation today.

Qld Retail Leases – The Importance of Care

Tue, 11 Jun 2024 00:12:26 GMT

The first in our series of commercial property articles covers retail leasing in Queensland. With the steady increase of retail shopping spaces, it is important to understand the fundamental requirements as both the Lessee (the tenant) or Lessor (the landlord) in such a transaction.

The type of lease, and therefore its requirements, differ significantly between spaces used for commercial purposes, and spaces used for retail purposes. Due to political pressures in the 1990’s, the Retail Shop Leases Act 1994 (Qld) (“the Act”) was introduced to govern retail leasing, adding further requirements of disclosure and conduct, and consequences of failing to comply.

It is the intention of this article to briefly outline some of the additional requirements in a retail lease; however, no article can provide the type of comprehensive advice that is necessary for a complete understanding specific to a particular space, as such, we invite you to contact our experienced team to assist you.

What is a Retail Lease ?

Simply, whether a lease is a retail lease is largely dependent on the use of the premises. If a premises is located in a retail shopping centre, or is to be used wholly or predominantly for the conduct of a retail business, then it is a retail lease.

A comprehensive list of what is considered to be a retail business is located in Schedule 1 of the Retail Shop Leases Regulation 2016 (Qld) (“the Regulations”).

Lessor Disclosure

The obligation is on the Lessor to provide to the Lessee disclosure of key facts of the lease, together with a copy of the proposed lease, at least seven days prior to the lease becoming binding on the parties or the Lessee taking possession of the premises. This seven-day period may be waived by a certificate of legal advice; however, this does not alleviate the Lessor’s obligation to provide the disclosure and proposed lease prior to the Lessee signing.

Updated disclosure must also be provided within seven days of a Lessor receiving notice form a Lessee that they have exercised any option they may have under an existing retail lease.

What is Disclosure?

The requirements of disclosure are set by the Act and the Regulations, and include:

Details of the premises;
Details of any shared amenities, such as air conditioning, cleaning etc;
The term of the lease and any options available;
The base rent payable and details of any annual reviews;
Details of the outgoings payable, and an itemised list of these;
Details of any marketing fund or percentage rent payable;
Requirements of any fit out to be conducted by the Lessee;
Details of any fit out or works to be performed by the Lessor;
Further information for the specific shopping centre (if applicable), including details of the required trading hours, numbers of shops, traffic counts and information on any anchor tenants, being large supermarkets etc.

The form that the disclosure takes is usually the same across retail leases, with a set format being readily available to professionals for completion.

The Consequences of Non-Disclosure

The consequences of not providing adequate disclosure enables a Lessee to terminate a lease (or renewed lease) within six months of entering into it. Further to this, a Lessee may be entitled to compensation for their loss or damage that was a result of the defective statement.

Moving Forward

It is important when operating in the retail lease space to be familiar with the requirements of both the Lessor and the Lessee under the Act and the Regulations.

Lessors should entrust their lease preparation to properly experienced and skilled professionals to minimise any possibility of a defective disclosure statement or erring in timing.

Lessees should seek proper advice on their rights and obligations under a retail lease, for what is one of the biggest investments that a retail business owner may make.

If you require further information about your lease, or wish to speak with one of our professional staff, please contact CJM Lawyers and let us assist you.

Replacing a Trustee of a Bankrupt Estate

Mon, 10 Jun 2024 02:06:14 GMT

Following a creditor’s petition and upon the making a sequestration order, a trustee will be appointed to the bankrupt’s estate to manage their financial affairs. Despite the trustee holding a ‘public duty to efficiently administer the bankrupt estate’, [1] it may be the case that the trustee is not progressing or taking appropriate steps to expedite the administration of the estate. In such circumstances, a creditor of the estate can apply to remove the trustee through either a resolution at a meeting of the creditors or alternatively through the streamlined method for replacing a trustee under section 181A of the Bankruptcy Act 1966 (Cth).

Resolution of the Creditors

A trustee can be removed, and a new trustee can be appointed following a resolution at a meeting of the creditors. Creditors of an estate can convene a meeting by resolution or where at least 25% in value of the creditors direct the trustee to do so. The value of the creditors is determined by reference to the value of the known creditors’ claims. 5 business days must have lapsed between giving notice and holding the meeting.

Where a meeting is convened, the creditor(s) seeking to remove the trustee should request that the trustee make a motion for removal and appointment of a trustee and importantly, should nominate a trustee they wish to appoint. The creditor(s) should ensure that the proposed trustee has consented to their appointment and if appointed, would not be in a position of conflict.

Where a meeting of the creditors is convened, the trustee will table the motion to replace themselves as trustee and appoint a new trustee in their place. The resolution to replace the trustee will pass where either a majority of the creditors voting or majority in value of the creditors voting vote in favour of the resolution. Following a successful resolution, the existing trustee will be removed, and the new trustee will take their place as trustee of the bankrupt’s estate.

Streamlined Method for Replacing Trustee

Alternatively, the Bankruptcy Act establishes a streamlined method for replacing a trustee. Through this method, a trustee of a bankrupt’s estate may, with the written consent of another trustee, nominate that other trustee to take over the role of trustee.

Under the Act, the trustee, when appointing a new trustee, must give notice to all creditors stating the date on which the proposed trustee is to be appointed and that any objection to the appointment must be given in writing at least 2 days before the date of appointment. If the trustee does not receive any objection to the appointment, the new trustee will assume their position as trustee of the bankrupt’s estate on the date of appointment.

The benefit of this streamlined method is there is no need for the trustee to convene a meeting of the creditors and there is no requirement to pass a resolution of the creditors which may be difficult to achieve where there are several larger creditors.

If you have concerns that a trustee is failing to uphold their duty and is not taking the appropriate steps to administer the bankrupt’s estate, the experienced team at CJM Lawyers can advise you of your options and guide you through the process to remove a trustee, ensuring that your interests as a creditor are protected.

Estate Planning and Medical Practioners

Tue, 28 May 2024 07:17:30 GMT

Estate Planning

Medical professionals play a crucial role in safeguarding the well-being of individuals and families. However, beyond diagnosis and treatment, there lies another crucial aspect that often goes overlooked — estate planning .

CJM Lawyers are dedicated to the preparation and administration of estate planning, often on an urgent basis, to ensure that individuals are able to maximise the asset protection of their estate as well as to minimise tax as the transfer of wealth occurs.

Generational Wealth Transfer

Due to the increasing average age and wealth of the so called ‘boomers’ the largest transfer of wealth will occur in the next 10 – 20 years which makes proper estate planning all the more important to ensure that:

Assets are passed on in accordance with the wishes of will maker;
Problem children have their inheritance controlled or protected; and
Tax opportunities are maximised at the time of the transfer and going forward.

Medical Professionals

While it may seem distant from the daily responsibilities of healthcare providers, understanding the benefits of estate planning is essential for fostering holistic care for patients. It is also important for the medical professionals themselves. In this article we delve into the significance of estate planning and why medical professionals should advocate for its integration into patient care.

Enduring Power of Attorney

Ensuring Patient Autonomy and Decision-Making: One of the primary benefits of estate planning is the empowerment of patients to make decisions regarding their healthcare and assets. Through documents such as advance directives, and enduring powers of attorney for healthcare, individuals can outline their preferences for medical treatment, appoint trusted individuals to make healthcare decisions on their behalf, and designate beneficiaries for their assets. By encouraging patients to engage in estate planning, medical professionals uphold patient autonomy and respect their values and wishes, even in situations where they may lack the capacity to communicate their preferences.

Estate Disputes

Mitigating Family Conflicts and Legal Battles: In the absence of clear estate planning directives, families may face conflicts and legal battles over medical decisions and asset distribution. Disputes among family members regarding end-of-life care or inheritance can exacerbate emotional distress for patients and compromise the quality of care they receive. Medical professionals can play a proactive role in mitigating such conflicts by initiating conversations about estate planning, thereby fostering consensus among family members and reducing the likelihood of disputes.

At CJM Lawyers we are here to assist medical practitioners, and their patients to ensure their estate planning covers off on their current and future needs as they progress through life. We can also advise on testamentary trusts which is a specific structure in a person’s will that provides additional asset protection and tax saving benefits.

We offer a free initial appointment at any of our offices located at Bundall, Chinderah, Tweed Heads and Murwillumbah. Please contact 1300 245 299 or visit www.cjmlaw.com.au to make an appointment.

Disclaimer: This article is for general understanding and should not be used as a substitute for professional legal advice. Any reliance on the information is strictly at the user's risk, and there is no intention to create a lawyer-client relationship from this general communication.

Subcontractor Rights | Contractor Insolvency

Fri, 10 May 2024 00:20:56 GMT

The building industry is facing many challenges including significant increases in building costs, a lack of skilled labour and steep interest rates. This challenging market has caused numerous large construction companies and developers to collapse, often with significant sums of money owed to sub-contractors. This leaves subcontractors in a precarious position where it is unclear whether they will be paid for the work they completed.

Subcontractor’s Charge

In Queensland, the Building Industry Fairness (Security of Payment) Act 2017 (Qld) establishes a statutory protection known as a ‘subcontractor’s charge’ which allow subcontractors to recover money owed to them in the event that a contractor becomes insolvent. The Act explains that a subcontractor’s charge ‘secures payment… of all money that is payable, or is to become payable, to the subcontractor for the subcontracted work’. By lodging a subcontractor’s charge, a subcontractor effectively ‘leapfrogs’ the contractor and secures payment from a contractor higher in the contractual chain.

A subcontractor is entitled to claim a subcontractor’s charge where the amount owed is for work completed under a subcontract and money for the work is still owed to the contractor by a contractor higher up in the contractual chain.

The first step in claiming a subcontractor’s charge is to give written notice, ‘the notice of claim’, to the person obliged to pay the money under the contract. Notice of the claim may be given where the work is not completed or where the money is not yet due and owing. However, importantly, if work is completed, the notice of the claim must be given within 3 months after practical completion of the works. Failure to comply with this timeframe will render the notice void.

After the notice of claim is given, the contractor must give a written response to the subcontractor within 10 days business days. In the response, the contractor may either accept or dispute liability of the amount claimed. If the contractor elects to dispute their liability, they may choose to either dispute the entire amount or a portion of the claim.

If the contractor accepts liability, a person higher in the contractual chain will pay the subcontractor for that amount. However, if the contractor disputes the subcontractors claim, it will first be necessary to commence proceedings to resolve the question of the contractor’s liability.

A subcontractor’s charge is particularly advantageous where the contractor enters liquidation. Ordinarily, a subcontractor would need to file a formal proof of debt and join other unsecured creditors to await payment, if any. However, where a subcontractor’s charge has been filed, the subcontractor ‘jumps the queue’ in front of all other unsecured creditors to become a secured creditor. As a secured creditor, the subcontractor’s debt will be prioritised over all over unsecure creditors. Effectively, the subcontractor will be first in queue after the costs of liquidation are paid which gives the subcontractor a better chance of being paid.

Before proceeding to lodge a subcontractor’s charge, it may be best to seek legal advice. The team at CJM Lawyers can advise and assist you with all aspects of a subcontractor’s charge. If you are a subcontractor and are concerned about an outstanding debt owed to you by a contractor, get in contact with the team and we can discuss your best course of action.

New Changes to Family Law

Fri, 10 May 2024 00:20:53 GMT

Some sections of the Family Law Act 1975 that deal with parenting matters have recently changed. These modifications will affect parenting cases that are currently ongoing in the Federal Circuit and Family Court of Australia and will also apply to all new applications related to parenting filed in the court after 6 May 2024.

Summary of Important Changes:

Removing the presumption of equal shared responsibility.
Introducing a shorter list of factors for the Courts to consider when deciding whether parenting arrangements are in the best interests of the child/children.
Introducing new sections about decision making on major long-term issues.

Removed Presumption of Equal Shared Responsibility

The court no longer starts their decision making with the presumption that both parents should have equal responsibility on decisions concerning the long-term interest of their child/children such as education, religion, and medical treatment. Rather, the best interests of the child are determined first according to a condensed set of factors. The court will then determine how parental responsibility will be allocated and the amount of time each parent is entitled with their child.

New ‘Best Interest’ Factors

The Court must consider the following factors when determining what is in the child’s/children’s best interests:

What arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child/children, and each person who has care of the children;
Any view expressed by the child/children (Including meeting the Independent Children’s Lawyer to express their views, if engaged);
The developmental, psychological, emotional and cultural needs of the child/children;
The capacity of each person who has or is proposed to have parental responsibility for the child/children to provide for the children’s developmental, psychological, emotional and cultural needs;
The benefit to the child/children of being able to have a relationship with the child’s/children’s parents, and other people who are significant to the child/children (where it is safe to do so); and
Anything else that is relevant to the particular circumstances of the child/children (the particular circumstance must be raised for the Court to give consideration to when determining the child’s/children’s best interest).

For more information, see: Family Law Amendment Act 2023: Factsheet for parents

Asset Division

Tue, 09 Apr 2024 03:17:13 GMT

Introduction:

Separation and divorce can bring uncertainty and confusion, especially when navigating the legal process. To simplify this complex procedure, we've outlined the key aspects you should be aware of. Contrary to common belief, asset division or financial settlement isn't exclusive to married couples. The Family Law Act extends to de facto (unmarried) couples living together on a genuine domestic basis, providing entitlement to property and financial orders.

Prior to making a property settlement order, consideration is given to whether it is “just and equitable” to make any adjustment to the parties’ interests (both legal and equitable) in the property available for division. If it is considered an adjustment is appropriate, there are then four steps which are followed to determine a party’s entitlement.

Asset Pool:

The court initially identifies the property pool between the parties to determine their assets and liabilities. This can include superannuation, tax liabilities and interest in trusts.

Contributions:

Next, the court assesses the contributions made by each party from the commencement of cohabitation to post-separation. Contributions encompass financial, non-financial, and homemaker contributions, with the court recognising the significance of all contributions, not just financial ones. If a party's ability to contribute is impacted by domestic violence, the court considers this factor. An entitlement-percentage is allocated accordingly.

Future Needs:

The court then considers the parties' future needs, including health, income, earning capacity, custody of children, and standards of living. Based on these factors, adjustments are made to the entitlement-percentage allocation.

Just and Equitable:

Before making an order, the court ensures that any decision is just and equitable to both parties, aiming to prevent unfair outcomes. The court exercises broad discretion in determining fairness, allowing them to consider all circumstances between the parties.

Conclusion:

In reality, this process is far more complex and requires exceptional legal knowledge to navigate the untold intricacies. CJM Lawyers' team of specialised Family Lawyers can guide you through every step, providing clarity and support during these challenging times to help you achieve the best possible outcome.

Disclaimer: This article is for general understanding and should not be used as a substitute for professional legal advice. Any reliance on the information is strictly at the user's risk, and there is no intention to create a lawyer-client relationship from this general communication.

Social Media Abuse on Business

Tue, 09 Apr 2024 03:17:08 GMT

Social media platforms can be valuable tools for enhancing brand visibility, engaging with customers, and driving growth in the contemporary business landscape. However, it is important to note that misuse of social media can have significant legal implications for companies. Businesses must navigate a complex legal landscape in the digital realm, which includes issues such as defamation, harassment, intellectual property infringement, and cybersecurity breaches.

Defamation is a major legal concern for businesses dealing with social media abuse in Australia. According to Australian law, defamation occurs when a statement is published that harms the reputation of an individual or entity, leading to financial or personal damage. Defamatory content can spread rapidly on social media platforms, causing irreparable harm to a business's reputation. In response, businesses may take legal action for defamation under the Defamation Act 2005 (Cth) or equivalent state legislation, seeking damages and injunctive relief to mitigate the harm caused.

Additionally, businesses must address the legal implications of cyberbullying and harassment carried out through social media channels. Cyberbullying is the use of electronic communication to intimidate, threaten, or harass individuals, including employees, customers, and stakeholders of businesses. In Australia, cyberbullying is regulated by various laws, including the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 (Cth) and state-based legislation. Businesses may seek legal remedies, such as apprehended violence orders (AVOs), injunctions, or civil litigation, to protect individuals from cyberbullying and hold perpetrators accountable for their actions.

Intellectual property infringement is also significant legal challenge for businesses dealing with social media abuse. Unauthorised use or misappropriation of trademarks, copyrighted material, or trade secrets on social media platforms can jeopardise a business's intellectual property rights and competitive advantage. To address instances of infringement, businesses can seek legal recourse under the Australian Consumer Law (ACL), the Copyright Act 1968 (Cth), or the Trade Marks Act 1995 (Cth). Legal remedies may include injunctions, damages, and the removal of infringing content.

Moreover, cybersecurity threats on social media platforms pose significant legal and regulatory risks for Australian businesses. Social media channels can be exploited by cybercriminals to initiate phishing attacks, distribute malware, or commit identity theft, thereby compromising the security and privacy of businesses and their customers. To mitigate cybersecurity risks, businesses must comply with data protection regulations such as the Privacy Act 1988 (Cth) and the Notifiable Data Breaches (NDB) scheme. Furthermore, it is recommended that businesses implement strong cybersecurity measures, regularly conduct risk assessments, and collaborate with law enforcement agencies to effectively address cyber threats.

One notable case of social media abuse in the Australian corporate sphere over the past decade involved Telstra, the country's largest telecommunications company, during a nationwide network outage in 2016. The outage, which disrupted mobile and broadband services for millions of customers, sparked a torrent of complaints and frustration on social media platforms, where users voiced their discontent with Telstra's handling of the situation. Customers took to Twitter, Facebook, and other online forums to express their anger, with many sharing stories of being unable to make calls, access the internet, or conduct business transactions due to the outage. Telstra found itself inundated with negative comments, memes, and viral posts criticising its response to the crisis, prompting the company to scramble to contain the fallout and restore its reputation.

The incident served as a stark reminder of the power of social media to amplify consumer discontent and the importance of swift, transparent communication in managing crises effectively. In the aftermath of the outage, Telstra implemented measures to improve network reliability and customer service, but the unfortunate episode left a lasting impact on the company's reputation and underscored the need for businesses to prioritise customer satisfaction and resilience in the face of social media.

In conclusion, as the digital landscape evolves, Australian businesses must stay vigilant against legal issues stemming from social media misuse. Consulting CJM Lawyers , professionals in corporate law and commercial litigation, is crucial. Our team offers tailored advice, legal representation, and strategic direction to address risks effectively, including defamation and cybersecurity threats. Prioritising legal protection ensures businesses safeguard their reputation and assets. Contact us today for trusted support in navigating social media challenges.

Shareholders' Agreement

Mon, 11 Mar 2024 06:28:24 GMT

Setting up and running a business can be a busy and stressful time. Unfortunately, business owners often neglect a crucial step for the protection of their business’ success and longevity, a shareholder’s agreement.

A shareholder’s agreement governs the relationship between the shareholders and directors and sets out a framework for how a variety of situations and decisions should be dealt with. In the absence of a shareholders’ agreement, the operation and governance of a business will be administered by the business’ Constitution and the general rules set out in the Corporations Act. However, these are generally broad and aren’t tailored to each business’ unique needs. Rather, a shareholders’ agreement specifically sets out how matters such as the appointment and removal of directors, sale of shares, and disputes between shareholders should be dealt with in the unique context of your business. Accordingly, a shareholders’ agreement is crucial to protect the best interests of a company.

When should a shareholders’ agreement be made?
Although it is best for an agreement to be put in place early at the start of the business, a shareholders’ agreement can be implemented at any time during its lifecycle. Additionally, it is important for a shareholders’ agreement to be reviewed regularly to ensure the agreement reflects the current intentions and circumstances of the business.

What matters can a shareholders’ agreement govern?

As every business is unique, shareholders’ agreements must be tailored to address the specific interests and needs of each business. As such, the matters which may be governed by a shareholders’ agreement are not limited and may include:

Decisions: Which decisions are to be made by directors or shareholders and the majority required for each?
Directors: How and when directors are to be appointed or removed?
Dividends: Are dividends to be paid and if so, how much and to whom?
New Shares: What is the process to issue new shares, buy back, split, or convert shares?
Share Price: In the event of a share sale, how will the share price be calculated and where a dispute arises regarding the share price, how will this be resolved?
Disputes: Importantly, how will disputes between shareholders be resolved?

Need further help?

CJM Lawyer’s team of commercial solicitors are experienced in dealing with the preparation of shareholders’ agreements. Protect your business’ success and longevity by contacting the team at CJM Lawyers to prepare or review a shareholders’ agreement.

Enduring power of attorney qld

Mon, 11 Mar 2024 06:27:36 GMT

In situations where individuals are incapacitated due to illness, accident, or similar circumstances, rendering them unable to make decisions or communicate their wishes regarding personal affairs, finances, or health, the establishment of an Enduring Power of Attorney allows for the appointment of a trusted individual/s to act on your behalf.

An attorney appointed under an Enduring Power of Attorney can make decisions regarding personal matters, such as residence, social housing arrangements, employment related decisions, limited health care choices including medical treatments, and financial affairs, encompassing income management, bill payment, taxes, and where permitted property transactions.

While an attorney's authority extends to the same decisions the individual could legally make, the document may outline conditions or limitations or as per the legislation. Supported by the underpinning legislation in that ‘an attorney who may exercise a power under a document must, when exercising the power, exercise it subject to the terms of the document.’ Whilst also exercising such power ‘honestly, and with reasonable diligence to protect the principal’s interests.’ Such protective measures may act to safeguard specific acts, safeguards for example may be entered to not allow provision to sell the family home or so forth.

The Powers of Attorney Act (1998) delineates certain powers that Enduring Powers of Attorney are expressly prohibited from exercising, including but not limited to making or revoking the principal's will, executing or revoking a power of attorney, enduring power of attorney, or advance health directive, exercising voting rights, consenting to child adoption, and consenting to the principal's marriage.

Eligible attorneys must be adults over 18, possess the capacity for the designated matters, and be trusted individuals capable of fulfilling the responsibilities. It's crucial to select someone based on trust, competence, and alignment with the individual's values and preferences, with no obligation to choose family members. They must also not be a paid carer or health care provider of the principal or, in the setting of financial appointment, be bankrupt.

You may consider Criteria for selecting an attorney to include trustworthiness, familiarity with the individual's preferences, and suitability for the role. There are also various ways to structure decision-making authority among multiple attorneys. These include jointly, where all attorneys must agree on decisions; severally, allowing any attorney to make decisions independently; jointly and severally, permitting attorneys to decide together or separately; and majority, specifying a required majority if more than three attorneys are appointed.

The power of an attorney for personal and health care matters commences only upon the loss of capacity to make those decisions. However, for financial matters, the attorney's power begins as nominated in the Enduring Power of Attorney form. The individual retains the ability to make decisions while capable.

The Enduring Power of Attorney can be cancelled or changed at any time if the individual still possesses decision-making capacity. This can be done by completing a Revocation of Enduring Power of Attorney form and providing certified copies to relevant parties.

Additionally, life events such as marriage, divorce, or death automatically terminate the Enduring Power of Attorney as well as, should the attorney become bankrupt, loose capacity themselves, or die, then their authority also ceases.

Should there be no Enduring Power of Attorney, the appointment of the Public Trustee for managing financial affairs is not automatic; instead, it is determined by the Queensland Civil and Administrative Tribunal, which may select either the Public Trustee or a family member. To ensure your preferences are honoured before losing decision-making capacity, it's advisable to designate an attorney for health, personal, and financial matters.

CJM Lawyers can assist you to provide certainty to you and your family, as well as provide you the security in knowing your wishes are documented and understood by those you entrust with your care should your capacity ever be an issue. Our Team will also ensure that instructions are clear as to when it can be used, should be used, and the legal requirements in the keeping and preservation of this there, also.

Disclaimer: This article is for general understanding and should not be used as a substitute for professional legal advice. Any reliance on the information is strictly at the user's risk, and there is no intention to create a lawyer-client relationship from this general communication.

Immigration Law Article

Mon, 12 Feb 2024 01:16:51 GMT

If you are seeking to visit, work, study or live in Australia, it is expected that you research and identify which visa would be most appropriate for your purposes of travel. For non-English speaking individuals, the process to find a suitable visa and apply for it may become unnecessarily confusing. The four most common types of visas available to non-Australian visa applicants, highlighting their eligibility, costs and entitlements. These visas include:

Tourist visas;
Working Holiday visas;
Student visas;
Partner visas; and
Skilled visas.

This article provides a brief explanation in relation to Partner visas and Skilled visas.

Partner visas

I f you are the de factor partner or spouse of an Australian citizen, Australian permanent resident or eligible New Zealand citizen living in Australia temporarily, you may be eligible to apply for the Partner visa (subclasses 309 and 100).

If you have not yet held a Partner visa of any kind, you must first apply for the temporary Partner (Provisional) visa (subclass 309). This visa allows you to temporarily stay in Australia until you are either granted a permanent Partner visa (subclass 100), or until you withdraw your application. Importantly, you must be outside of Australia when making this application. Once the Partner (Provisional) visa (subclass 309) has been granted, you will be allowed to reside in Australia and will be required to provide 2 years of ongoing documentation to prove a genuine relationship with your partner before being granted permanent residency through the Partner visa (subclass 100) . The cost of applying for the Partner (Provisional) visa (subclass 309) is $8,850.00 (AUD), with an additional fee applied for each family member applying for the visa with you. While this amount is quite large, this does also cover the cost for your permanent Partner visa (subclass 100).

Whilst under either a provisional or permanent Partner visa, you are eligible to not only stay in Australia, but work, study, apply for Medicare, attend free English language classes, and travel to and from Australia as many times as you want.

Skilled visas

Australia's skilled migration program offers various avenues for individuals and families seeking permanent residency. Among the prominent options are the Subclass 189 and Subclass 190 visas, both points tested and not requiring employer sponsorship. The Subclass 189 is independent, while the Subclass 190 necessitates sponsorship from a state or territory. Applicants must attain a minimum of 65 points, which are allocated based on criteria like age, English proficiency, and work experience. Additionally, the Subclass 491 caters to skilled workers in specific regional areas, mandating sponsorship from a state or eligible family member. Furthermore, the Subclass 186 facilitates employer nomination for permanent residency, whereas the Subclass 494 serves as a regional variant. The Subclass 482 addresses temporary skill shortages through employer sponsorship, while the Subclass 485 allows international students to undertake post-graduation work. Each visa category entails distinct eligibility requirements and application procedures, offering diverse pathways for skilled migration to Australia. Generally visa application fees for these visas can range from approximately $1,500 (AUD) to $5,000 (AUD) for the main applicant.

These visas share a focus on addressing skill shortages and attracting skilled individuals to contribute to Australia's economy. With sectors like healthcare and IT experiencing shortages, skilled migrants bolster growth and innovation. Our country's allure lies in its high living standards, quality education, healthcare, diverse culture and scenic landscapes, making it a sought-after destination for those seeking improved opportunities and quality of life.

How we can help?

If you are considering applying for a visa to visit, work, study or live in Australia, the team at CJM Lawyers are here to help. Our immigration solicitors who are experienced in migration matters, including visa applications, are more than happy to assist throughout each step of the application process. To make matters more stress-free, many of our team are fluent in more than one language including Japanese, Korean, Mandarin, Spanish and French making it easier for you to gain a full understanding of the application process. If you seek assistance with your visa, please do not hesitate to contact Jake Jeong, head of our immigration team on 1300 245 299.

Estate/Succession Law Article

Mon, 12 Feb 2024 01:16:42 GMT

Selecting an executor in your will is an important decision that places a great deal of trust in that person to administer your estate as you intended. However, unfortunately in some cases when required to act, the executor decides they do not wish to be formally appointed, or alternatively where they are appointed, they fail to uphold their duties as an executor. When these situations arrive, there are three effective ways an executor can be removed:

the executor voluntarily renounces their position (“Renunciation”);
the executor fails to take steps to administer the estate and refuses to do so after being issued with a citation (“Citation”); or
the executor is removed by an order of the Supreme Court.

Renunciation

It is important to remember that an executor appointed in a will is not obligated to take up the role. Accordingly, the executor can voluntarily renounce their appointment as executor by signing a ‘Renunciation of Probate or Administration’ form. The role of executor then passes to the alternate or substitute executor named in the will or may require the appointment of an administrator in accordance with the succession law legislation.

Citation

In some cases, the executor will fail to take action to administer the estate and refuse to voluntarily renounce their title as executor. In these circumstances, the executor can be ‘cited’ with a court document requiring the executor take steps to administer the estate within 14 days. If they fail to comply with the citation, a substitute executor or person with the next highest right to administer the estate will be appointed by the Court.

Court Ordered Removal

Finally, where the executor has been formally appointed by the Court, the Court holds the power to remove that person should it become necessary. Although, the Courts will not lightly interfere with the appointment of an executor, they will do so where the due and proper administration of the estate has been put in jeopardy, has been prevented, or where the Court is satisfied the executor is not a fit and proper person to carry out their duties. Where the Court orders removal of the executor, the Court will pass the role to the substitute executor or often appoint an independent solicitor to finalise the estate.

Need further help?

CJM Lawyer’s experienced estate solicitors are able to assist with any concerns you may have regarding your rights or interests in an estate, including your options to remove an executor where they do not wish to act as executor or fail to uphold their duties as executor. If you need any assistance, please do not hesitate to contact our office.

Employment Law Article

Tue, 16 Jan 2024 01:08:46 GMT

Whilst it is common for businesses to consider changing a casual employee to permanent part-time or full-time, it isn’t common to do the reverse – from permanent to casual. As such, if your business is looking at changing an employee’s employment status to casual or your employer has offered you a change in employment status, what do you need to know?

What does the Law say?

Whilst there may be reasons why an employer would wish to take such actions, it is well established that an employer cannot unilaterally change the terms of an employee’s employment contract (i.e. without the employee’s agreement). This is because an employment contract is a legally binding document that is entered into by two parties, meaning that any variation to the contract requires the consent of both parties before it takes effect.

What happens if an Employee does consent?

Where an employee agrees to move from permanent part-time or full-time to casual, whether at the request of the employee or mutually agreed, an employer will be required to carry out their obligations by ending that employee’s current employment. This means the employer must provide the employee the required notice and leave and entitlements payout. Once an employee’s current employment has ended, they can be onboarded as a casual employee.

What happens if an Employee does not consent?

If an employee does not agree to a contract variation, and the employer proceeds with the change, this may be seen as a repudiation (i.e. a serious breach) of the employment contract. This could then open the door to claims from the employee including unfair dismissal.

As such, in the event the employee does not consent to move to casual employment, a number of factors need to be considered by the employer before taking any steps including:

checking whether the employment contract, registered agreement or award makes any provisions for changing the employee’s work hours without their agreement;
ascertaining whether the change if it occurs, makes a new employment contract or simply changes the existing contract;
determining what entitlements and leave will need to be paid out; and
confirming how much notice is required.

Together, this information can help determine whether or not an employer may be able to change the employee’s employment to casual without their agreement.

Need further help?

These rules are not limited to changing the employment status of an employee but apply to the whole of an employment agreement between the employer and the employee and apply regardless of whether the contract of employment is written, oral or partly written and partly oral.

If you need any assistance with employment contracts or understanding your rights and obligations under them as an employer or employee, please contact our office.

Enforcement Proceedings Article

Tue, 16 Jan 2024 01:00:14 GMT

Once judgment is made against a debtor requiring the debtor to pay you a sum of money, it may be necessary to ‘enforce’ the judgment to ensure payment is received from the debtor. This process is referred to as enforcement proceedings and is the legal action to enforce the payment of a court judgment.

Applicable Time Limits

It is important to note that once a judgment is made, a creditor has six years to start enforcement proceedings under the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”) . Thereafter, it will be necessary to make an application to the Court seeking leave of the Court to commence enforcement proceedings against a judgment debtor. After 12 years, the Limitations of Actions Act 1974 (Qld) precludes a creditor from enforcing a judgment.

Final Letter of Demand

The first step to enforce a judgment is to issue a final letter of demand to the debtor advising the debtor that judgment has been made against them. Under the final letter of demand, the debtor is generally provided 7 – 21 days, depending on the amount payable to the judgment, to pay the judgment debt before further steps are taken by the creditor to enforce the judgment.

Enforcement Hearing

Should the debtor fail or refuse to pay the judgment debt as demanded in the final letter of demand, it will be necessary to commence the formal enforcement process. The first step under the formal process is to issue a statement of financial position to the debtor. The statement requires the debtor to answer a range of questions to disclose all relevant information about their income, expenses, assets and liabilities. The debtor has 14 days from the date of receipt to return the completed statement to the creditor.

If the debtor fails to return the statement of financial position within 14 days or the creditor is not satisfied with the extent of the information provided, the creditor may apply to the Court for an enforcement hearing. The Court will then issue a summons notifying the debtor they are required to attend the Court on a specified date to answer any questions the creditor may have or to provide any relevant financial documents such as bank statements or pay slips. Such information enables the creditor to make an informed decision about the conduct of any further enforcement hearings, including whether to proceed further and which is the correct course of action.

After an enforcement hearing, the creditor may then apply for various warrants or orders including, inter alia, an:

1) enforcement warrant for seizure or sale of property;

2) enforcement warrant for redirection of debts including regular redirections from financial institutions;

3) enforcement warrant for redirection of earnings; or

4) order for payment by instalments.

Enforcement Warrant for Seizure or Sale of Property

The issue of an enforcement warrant for the seizure or sale of property authorises an enforcement officer to seize and sell any real or personal property that the debtor has a legal of beneficial interest in. However, it is important to note the enforcement officer cannot seize basic household property such as necessary household furniture, or property the debtor requires to make a living such as tools.

Enforcement Warrant for Redirection of Debts

Rule 840 of the UCPR authorises the Court to issue an enforcement warrant for redirection of debts under which certain debts that are payable to the debtor by a third person are redirected directly to the creditor. In determining whether to issue this warrant, the Court will have regard to the necessary living expenses of the debtor and any dependants and any other liabilities of the debtor which they are liable to pay.

Enforcement for Redirection of Earnings

The warrant, also known as a ‘garnishee order’, is used to redirect the debtor’s earnings from a third party directly to the creditor. These warrants most commonly are applied to a debtor’s earnings from an employer under which the employer is required to deduct the amount specified in the warrant and redirect that amount directly to the creditor. The warrant remains in force until the judgment debt is satisfied or the warrant expires.

Order for Payment by Instalments

An order for payment by instalments is an order made by the Court which requires a debtor to satisfy a judgment debt through several instalment payments. The order may also be referred to as an ‘instalment order’. When determining the particulars of the instalments such as the instalment sums and the frequency, the Court must consider the debtor’s financial situation including the debtor’s means of satisfying the proposed order and the Court must be satisfied that the instalment order will not impose unreasonable hardship on the debtor.

Although engaging a solicitor is not compulsory, enforcement proceedings can often be complicated and procedurally complex. Accordingly, it is important to obtain proper legal advice to ensure your legal rights are protected and you achieve the best outcome. [The team at CJM Lawyers is experienced in the area of enforcement proceedings and can walk you through each step of the process, please contact our office to schedule a free initial consultation.]

Discussion between a used car dealer and a lawyer.

Tue, 19 Dec 2023 05:51:23 GMT

Yusuke Soda and Jake Jeong

Due to its vast territory, Australia is basically a car-based society. People who live in cities may not be particularly conscious of it, but once you leave the city, there are many places you can't go without a car, and a car becomes a necessity. As a result, there is active buying and selling of used cars in Australia at prices that are affordable for working holidaymakers and students. This article introduces Yusuke Soda, the representative of WISE JAPAN, which has its main office on the Gold Coast and has an overwhelming presence as a used car dealer, and Jake Jeong, of CJM Lawyers, a law firm with four offices in QLD and NSW, who talked about the pitfalls of private car sales and the reason for the existence of dealers, including the laws related to used car transactions and how to avoid problems.

What are the benefits and risks of privately selling used cars?

While new car sales are rapidly increasing in Australia, the market is declining as used cars, which had been selling well due to replacement demand for new cars, are becoming duplicated, especially older models. As prices continue to drop and it becomes easier to purchase, private sales of used cars tend to become more active.

What do you think?

Yusuke Soda: Don't forget that there are risks associated with individual buying and selling. The higher the risk, the cheaper you can get a car, and the more you spend, the lower the risk.

Jake Jeong: Of course, buying a used car through a dealer is more expensive than buying it privately, but there are obvious reasons why. One of the things that you can do is confirm that the car is sound and safe, including the registration and certificates that are essential when owning a car, the preparation of necessary documents that must be submitted to the government, and mechanical aspects.

Yusuke Soda: When you buy a car from a dealer, safety is guaranteed, so you can ask for help if it breaks down or an accident occurs. The biggest legal difference is whether or not there is a warranty. A common pattern in private sales is that you may find out after the purchase that there was an accident in the past or that the car was stolen. You are obligated to inform the purchaser. In the case of privately sold cars, there is a risk of various problems such as the accident history not being known, and odometer and registration fraud. However, dealers are subject to regulations, so they must not only inform the buyer of the accident history, but also take care of warranty and insurance procedures.

Jake Jeong: Many people don't know information about warranties. Some people, especially those who come to Australia from overseas, don't know whether they need insurance or not and think they don't need it. Meanwhile, dealers provide support by providing important information, including insurance, in addition to the car itself. In the case of a private sale, there is no traceability history or guarantee, such as whether the car is stolen, and everything must be confirmed by the individual. Many foreigners, including Japanese, don't know how to get verified in Australia. For example, if your car has a personal loan on it, you won't legally have the power to take it away, but you could be subject to a claim. There have been many cases where a car that was being financed was sold and its registration was on PPSR, but because the car was sold privately, the car was not known, and the car was repossessed by the bank after the car was acquired.

Yusuke Soda: Certainly. I hear stories like that often.

Jake Jeong: Sometimes it's a stolen car. For example, if your car was stolen the day before you bought it, it may not show up in your car history right away. There is also the risk of being involved in a crime, such as when a car is bought or sold during a police investigation, and after you buy it at a low price, the police investigate and say, ”This is the car you stole.'' In the case of private sales, such risks are extremely high. Since buying a car is a big purchase, it's easy to get careless if you only focus on the low price. It is important to consider carefully, including the level of risk.

Yusuke Soda: I think there are quite a few people who know a lot about cars who think they should just look for one and buy it themselves, but there are people who have a background as mechanics or who worked for an automaker. People who really understand cars buy cars through official shops and dealers. Cars are machines, so they will break down at some point and it will cost money to repair them. This is because we fully understand this. If you buy from a dealer, you have someone to complain to if something goes wrong with your car. If your car breaks down or you're in an accident, you can call your dealer and get help. No matter how much you know about cars, it is difficult to know about insurance, registration, accident history, theft history, etc., so it may be natural for even people who know a lot about cars to think about buying from a dealer.

Jake Jeong: When you buy from a dealer, you get a legal warranty, right? For example, if a used car is 10 years old and has a mileage of 160,000 km or more, there is a one-month warranty period, and if it is less than 10 years old and has a mileage of less than 160,000 km, it will come with a 3-month warranty.

Yusuke Soda: Even if a dealer says they offer a one-year warranty, in reality, the legal guarantee is at most three months for used cars. Many people have this misunderstanding, but even though it says a one-year warranty, it only covers the automatic engine and does not cover everything else, so you need to look carefully at the warranty details.

Jake Jeong: One of the most common incidents recently in private car sales is scams. Specifically, this applies to advertisements posted on the Internet, such as SNS timelines. There are plenty of photos and information about the car, and the link looks legitimate at first glance. After that, when I contacted them, I was asked to pay a deposit before inspecting the car, and after I paid the money, the advertisement disappeared and I was unable to contact the poster.

Yusuke Soda: Most of the people who fall for such scams, such as car and rent bonds, are foreigners. When it comes to cars, be careful about extremely cheap cars. For example, a very new car costs $5,000. Anyone who has lived in Australia with common sense would know that it's strange that a car is being sold at that price, but since they just arrived in Australia and don't speak much English, they just jumped at it because it was a cheap and good car. I transfer the money I have on hand. We also receive inquiries from customers who say that their car broke on the way home after they bought it, or that the engine won't start the next day. There are some small tricks that can be used to keep a worn-out car running for a day or a week. In that case, you would end up buying a piece of scrap metal for $5,000.

Jake Jeong: In the case of scams, there are many cases where you don't know who the recipient is and only know their phone number. Anyone can easily create a Facebook profile, so you should be careful.

Yusuke Soda: There's nothing you can do about it even if you report it to the police, so the only thing you can do is make sure you don't get caught in the first place. To do this, you need the right knowledge, and even if you have that knowledge, there will still be risks, so it's best not to cross dangerous bridges in the first place. I think it's fine to buy and sell cars between people with clear identities, such as good friends, but since there's no dealer in between, if something happens, both parties will be responsible. For example, if something goes wrong with your car, you could have had it fixed for free if you had bought it at a dealer, but because you bought it from a friend, it might cost you $5,000 to fix it. Even in cases where the seller was not expecting this or the buyer had heard that it was a decent car, problems still occur. Also, if the car is too worn out, it may not pass vehicle inspection, and there are some cases where the name cannot be changed. The cheaper the car, the more problems there are.

How can I avoid risks and purchase a used car with peace of mind?

Jake Jeong: When you buy a car privately, you are responsible. You are responsible for everything, including whether you have financing or if there is a problem with your car. Dealers are professionals who also know legal matters related to cars. You can avoid trouble by consulting with your dealer from the beginning, but if you do get into trouble, it would be a good idea to consult a lawyer.

Yusuke Soda: When you buy a car from a dealer, the law comes with a warranty for a certain period of time. At WISE JAPAN, we provide support even if a problem that is not covered by the warranty occurs. We're in business with a signboard, so we do everything we can to support the customers who buy from us. As for warranties, some people offer extended warranties for two years, for example, but that is a product sold as a package. Apart from that, there is a warranty that you must attach as a dealer, and it is divided into two patterns. For older cars that are more than 10 years old and have driven more than 160,000 km, the period is 1 month, and for other cars it is 3 months. Also, we only sell Japanese cars, so that may be another difference between us and other companies.

Jake Jeong: I think you should leave it to a dealer who is familiar with the Australian system. Many people from overseas think that the compulsory insurance on the register covers everything, but it does not cover damage to third parties or damage to assets. That's why I think it's important to get proper information and get insurance.

The important thing is to find out if the dealer is reliable.

Yusuke Soda: The scariest thing is unlicensed people pretending to be dealers. There are actually people who call themselves dealers and do business without a license. There are no guarantees if something happens, so if you run away, it's over. A car is a big machine, but unlike a house, it's surprisingly easy to buy if you save up money. That is why it is important to determine the means of purchase.

Jake Jeong : Even new cars can have problems, so you should be more careful when buying a used car.

Yusuke Soda : What's important is not what model year and car you buy, but where you buy it from. What is important is whether the person you gave the money to will treat you properly even after receiving the money. The key to finding a reliable dealer is whether or not they have a dealer license and a store. Although this is a special case, there are some individuals who simply obtain a license and set up a shop at home. Unlike underground dealers, these dealers are individual dealers, but since they don't have a store, they buy one car on their own, make a small profit, and then sell the car. Therefore, if we decide to issue a warranty, we will not be able to respond if three vehicles arrive at the same time. Another concern is that they don't have the financial strength because they don't have a store. In addition, people who are called black dealers, behind-the-scenes dealers, and backyard dealers do not have licenses or maintenance facilities. Their common pattern is to use someone else's name and sell from someone else's name to someone else's name.

Jake Jeong : To find out, first ask if they have a dealer license. There is a register for each state in Australia, so there is a way to check, and if you do a little research you can find the information. You can tell that the dealer is a legitimate dealer if they have a website, are doing proper marketing, and can check all the information on the register.

Yusuke Soda : Even though they know it's suspicious, there are many people who take advantage of the low price and buy it, but once the car stops working, it's over. I would like you to think carefully and consider the future, rather than jumping in just because it's cheap.

──Thank you very much for today.

Wise Japan

Yusuke Soda

Born in 1993 in Fukuoka Prefecture. Former professional magician. he is an entrepreneur. My hobby is surfing. He started doing magic when he was in elementary school, and while he was in college, he opened his own shop and became a professional magician. After that, he became an entrepreneur and over 11 years was involved in the launch of 9 companies and 13 stores, including a security system company, a purchasing specialty store, and WISE JAPAN, with total sales of 2.1 billion yen. He comes to work every day with his beloved Dalmatian, Pop, who is 3 years old.

CJM LAWYERS

Jake Jeong

Graduated from the Faculty of Law at Bond University. He is admitted to the NSW Supreme Court and the High Court of Australia. He handles a wide range of areas including general civil matters, immigration law, corporate law, family, property, wills and estate. He is fluent in English, Japanese, and Korean, and obtained a score of 90 on the PTE academic exam (equivalent to IELTS 9.0). He has four years of experience as a director of a consulting company related to nursing care. Member of the NSW Law Society, Gold Coast Japanese Chamber of Commerce and Industry, Asian Australian Lawyers Association, etc.

*The information contained in this article provides a general overview of matters of interest and is intended to apply within Australia only. Additionally, CJM Lawyers is not affiliated with Wise Japan Auto Group or Nichigo Press and remain impartial to provide the best possible service to our clients.

The Importance of Disclosure in Property Contracts

Wed, 13 Dec 2023 23:22:01 GMT

On Wednesday 25 October 2023, the Queensland Parliament passed the Property Law Act 2023 (the New Act), which is a landmark legislative reform designed to modernise the state’s property laws. This legislation supersedes the Property Law Act 1974, which has been in effect for nearly five decades.

The New Act attempts to streamline property laws in Queensland, bringing them into alignment with the laws already in operation in other Australian states, with its primary objective being the enhancement of transparency and consumer protection in freehold land property transactions.

In particular, the New Act introduces and/or modifies seller disclosure requirements for sellers of freehold land, including units, whereby the seller must disclose relevant information and documentation regarding the property to potential buyers prior to signing a contract.

Failure to Comply with Disclosure Requirements

Where a seller fails to provide proper disclosure in compliance with the New Act, the buyer may be entitled to terminate the contract. The purpose of the new disclosure requirements is to enhance the transparency and allow potential purchasers to make informed decisions when purchasing property in Queensland.

The New Act also further enhances the disclosure requirements for the sale of a property that is part of a body corporate, and attempts to streamline disclosure requirements for land sales in Queensland, bringing them into alignment with other Australian states.

In the recent case of Burridge & Anor v Saville [2023] QSC 244, a CJM client was faced with the situation where the buyers alleged that she had failed to comply with her disclosure obligations prior to the buyer entering into the contract for the purchase of her duplex property. The buyers alleged that the disclosure provided by the seller was insufficient, and they purported to terminate the sale contract and seek a refund of their deposit.

Whilst the Supreme Court of Queensland found that the CJM client had in fact complied with her disclosure obligations, and that the buyers’ termination of the contract was not valid, it serves to highlight the importance of compliance with the new disclosure requirements for all freehold land sale contracts once the New Act comes into operation.

Get Experienced Legal Advice

Purchasing a property is often one of the largest investments in a person’s life. The Burridge case emphasizes the importance of engaging an experienced solicitor to prepare and/or review a draft contract prior to execution, and to represent you throughout the conveyance process, particularly in the unfortunate circumstance where a dispute arises.

If you are considering purchasing a property, or find yourself in a contract dispute, CJM Lawyers’ experienced solicitors can provide you with advice at any stage throughout the sale process, including reviewing the proposed contract of sale. Our property lawyers can be contacted on 1300 245 299 .

Landmark Reforms in Australian Family Law: A New Chapter for Child Welfare and Safety

Wed, 15 Nov 2023 00:32:57 GMT

Australia has marked a pivotal moment in its legal history with the recent passage of crucial amendments to the Family Law Act 1975, under the Family Law Amendment Act 2023. Enacted on 19 October 2023, these changes signify a progressive shift towards prioritising children's best interests and safety in all parenting decisions, a move lauded by our firm and advocates across the nation.

Central to these reforms is the abolition of the 'equal shared parental responsibility' (ESPR) presumption, a concept often misunderstood and misapplied under the previous legal framework. Previously, section 61DA of the Act endorsed ESPR, inadvertently leading to confusion among parents who equated this with an entitlement to equal time with children, instead of the expectation that parents share decisions about their children's important needs, like education and health.

Parental responsibility, defined as the obligation to make significant decisions for a child's long-term welfare and development, now moves away from a presumption of 'equality' and focuses squarely on the child's best interests. This shift is not just semantic but alters the landscape of decision-making in family law cases. The new amendments empower courts to allocate decision-making based on what benefits the child most, whether it be joint or sole decision-making, or a mix of both for different aspects of the child's welfare.

Further enriching this child-centric approach, the amendments mandate Independent Children’s Lawyers to engage directly with children, ensuring their voices are not just heard but play a central role in proceedings that effect them. The inclusion of Indigenous perspectives of family and kinship in the definition of 'member of the family' marks a significant step towards a more inclusive and culturally sensitive family law system.

In line with prioritising child safety, the Family Law Amendment (Information Sharing) Bill 2023 establishes robust measures for courts to access comprehensive family risk profiles. This advancement enables courts to make informed decisions, particularly in cases involving potential child abuse, neglect, or family violence, by facilitating direct, timely access to critical information from police, child protection, and firearms agencies.

While these amendments are a leap forward, they also anticipate an initial surge in litigation, as families navigate the new legal terrain. This increase is an echo of past experiences post-amendment periods, as seen in 2006 and 2012. However, the current changes aim to reduce long-term litigation by clarifying parental responsibilities and removing ambiguities that previously plagued parental rights discussions.

The 2023 reforms, long-awaited and hard-fought, represent a new era in Australia’s family law system, one where children's best interests are not just a consideration but the driving force behind every decision. Although there is recognition that further enhancements are necessary, the current amendments stand as a testament to the government's commitment to protecting the welfare and safety of its youngest citizens.

For families navigating these changes, seeking legal counsel is advised to understand how these amendments might impact individual circumstances. As always, it is essential to remember that while the laws have changed, the ultimate focus remains steadfast – the wellbeing and safety of children.

Navigating these new changes in family law can be challenging, especially when you're focused on what's best for your children. Remember, you're not alone — professional guidance is available, and it's okay to ask for help.

If you have questions about how these laws affect your family or need assistance in a parenting matter, don't hesitate to reach out to our team of experienced family lawyers. We're committed to guiding you through this transition and ensuring the best outcomes for you and your children. Contact us today to schedule a consultation where we can discuss your situation in detail and provide the tailored advice you need.

Your family's well-being is our top priority, and we're here to support you every step of the way.

Unfair Contract Terms: Increased Penalties and Expanded Operation

Tue, 31 Oct 2023 01:17:52 GMT

As of 10 November 2023, unfair contract terms will be unlawful and civil penalty provisions prohibiting the use of, and reliance on, unfair terms in standard form contracts will be introduced in the Australian Consumer Law (ACL) and the ASIC Act.

Below are some of the changes you should be aware of:

1. Small business eligibility threshold for the protections will be increased.

2. Under the ACL, the unfair contract terms protections will apply to a small business contract if one party to the contract is a business that employs fewer than 100 persons or has a turnover for the last income year of less than $10,000,000.

3. Under the ASIC Act, the protections will apply to a small business contract if the upfront price payable does not exceed $5,000,000, and one party to the contract employs fewer than 100 persons or has a turnover for the last income year of less than $10,000,000.

4. Under both the ACL and ASIC Act, part-time employees are to be counted as an appropriate fraction of a full-time equivalent employee.

5. A contract may be determined to be a standard form contract despite there being an opportunity for:

party to negotiate changes to contract terms that are minor or insubstantial in effect;
party to select a term from a range of options determined by another party; or
party to another contract or proposed contract to negotiate terms of the other contract or proposed contract.

6. Increased penalties for some conduct, maximum penalties for companies that breach those provisions have increased to the greater of $50,000,000 or three times the value derived from the relevant breach, or, if the value derived from the breach cannot be determined, 30 percent of the company’s turnover during the period it engaged in the conduct.

Please get into contact with our office if you require further information on how these changes will potentially affect your business or if you require assistance with ensuring your current contracts do not contain any unlawful unfair contract terms.

Are you a small business struggling with your debts?

Tue, 24 Oct 2023 02:17:21 GMT

The S mall Business Restructure Plan (SBRP) regime was introduced in response to the COVID-19 pandemic and to assist businesses to stay trading through and beyond the pandemic. The SBRP has numerous advantages compared with traditional restructuring vehicles such as liquidation or voluntary administration, including that:

Eligibility Criteria
To be eligible, the company:

Other benefits include that it is generally cheaper and quicker than traditional restructuring alternatives and that it may be possible for building companies to retain a QBCC licence where other insolvency events may see a director become an excluded person for a period of time.

Come see one of our insolvency and restructuring staff to advise on whether SBRP is right for you and help you navigate through the process.

C ontact us today to ensure your estate is divided according to your wishes.

What is the new Agriculture Visa and am I eligible?

Mon, 21 Nov 2022 22:55:21 GMT

The Department of Foreign Affairs and Trade has recently developed the Agriculture Visa ( “Ag visa” ) to address workforce shortages in the agriculture sector. It is known to supplement the existing Pacific Australia Labour Mobility Scheme, also known as the PALM Scheme, which primarily sources overseas workforce from Pacific countries and Timor-Leste.

Currently, the Ag visa program has been created, but the program design is still being developed and is expected to be released in January 2022. Nonetheless,

What is the Ag visa?

The Ag visa will be a new stream added to the existing Temporary Work (International Relations) Visa – Subclass 403. This visa will allow employers to internationally recruit skilled, semi-skilled and low-skilled workers for the following agricultural industries:

Horticulture
Meat processing
Fishery
Forestry

Participating Countries – Can I apply?

There have been indications that the Ag visa will be available to the Association of Southeast Asian Nations (ASEAN) countries.

Realistically, visa applications will only be open to citizens of countries where a bi-lateral agreement has been executed.

Visa Duration – How long is the visa?

It has been indicated that the visa program will allow workers to work in Australia for nine (9) months in a year and return to their country for three (3) months for a total period of 3 years.

The greatest news about this visa is the fact that the Australian Government is considering permanent residency pathways for visa holders.

Implementation of Visa – How does it affect me?

The Ag visa program will be managed by the Department of Foreign Affairs and Trade, which is currently managing the PALM Scheme.

There will be two (2) phases in rolling out the operation of the Ag visa. Phase 1 will take place between December 2021 and March 2022, while Phase 2 will start from April 2022.

Phase 1 allows Approved Employers who already form part of the PALM Scheme to recruit a small cohort of agricultural workers dependent on border restrictions, country readiness and availability of quarantine.
Phase 2 will see an increase of number of international recruitment and an expansion of bi-lateral agreements with participating countries for the Ag visa.

The specific details of the program will be released in due course. Once further information is released the

CJM Lawyers – Who are we?

We at CJM Lawyers hold extensive knowledge and experience with employer sponsorship and visa applications. If you are interested in becoming a sponsor, please contact our office on 1300 245 299 or info@cjmlaw.com.au .

The CJM team can provide legal services for non-english speaking nationals, such as Spanish, Japanese, Korean, Chinese and French.

Kent James: At Your Service

Wed, 19 Jan 2022 23:48:04 GMT

Cronin James McLaughlin Lawyers partner Kent James has the ability to see the big picture and influence a positive outcome.

Cronin James McLaughlin Lawyers co-founding partner Kent James is a trusted figure in employment law with a deft ability to see the big picture.

Kent has forged a reputation for providing employers and employees with clear and concise guidance to obtain the best possible outcomes, particularly when it comes to dealing with all legal matters surrounding Fair Work, Occupation Health and Safety and employment policies for business.

Having amassed more than 25 years of practical legal and commercial experience before co-founding the Surfers Paradise-based CJM Lawyers in 2014, Kent has a unique, client-centric understanding of what legal risks and opportunities a business faces.

It’s an understanding born of holding many technical, legal, managerial, executive and non-executive roles in listed and unlisted companies and government organisations both here and in the UK.

With extensive experience in risk and compliance, commercial litigation, regulatory compliance, industrial relations, commercial and international reporting, Kent is adept at managing the risk and compliance function for companies within the underwriting, insurance broking, financial planning, premium funding and superannuation business units.

From dispute resolutions to commercial negotiations and overcoming regulatory challenges, Kent has the ability to see the big picture and influence a positive outcome. Renowned for putting his clients first, he focuses on building long-term relationships.

Kent, who holds a Diploma of Financial Services (Financial Planning) and Bachelor of Laws Degree, was admitted as a solicitor of the Supreme Court of Queensland in 1994 and the Supreme Court of New South Wales in 1998.

He and his fellow CJM Lawyers' partners – Shannon McLaughlin, Brendan Madigan, Peter Snelgar and Suzette Araneta – are all Gold Coast locals, completing their studies and establishing their professional careers in the area.

“With deep experience across commercial and general insurance, financial planning and wealth management, consumer and commercial lending, employment law, and change management, we provide top-tier solutions grounded in commercial reality,” Kent says.

Founded on the Gold Coast, CJM Lawyers was established with a commitment to delivering the highest level of professional service, combining in-depth legal knowledge with strong local insight.

The firm was founded through the acquisition of Bruce Graham Lawyers, originally founded on the Coast by Bruce Graham in 2007. Bruce had previously established a firm in Brisbane in 1979 and consistently provided quality service to clients in South East Queensland, Papua New Guinea and Northern NSW for more than 25 years before illness forced him to sell the practice.

The partners have continued Bruce’s legacy by delivering high-quality legal services with a personalised local touch. In 2017, the partners expanded the firm again, acquiring KL Legal to service the growing Northern NSW and Southern Gold Coast regions.

“We are always accessible to our clients,” Kent says.

“This factor, together with easy access to either office, enables CJM Lawyers to provide benefits not available to clients of the larger city firms, whilst providing equal or superior service and experience.”

Elder Abuse and Undue Influence

Tue, 16 Nov 2021 23:51:28 GMT

With continuing advances in medical technology and breakthroughs in medicine the average age a person dies within Australia continues to increase. It was once quite rare to see clients over ninety years of age. With these medical advances it is becoming a more common and troubling occurrence that clients or their beneficiaries are now seeking advice in instances of elder abuse.

As people age they can become more vulnerable to their adult children, their carers, friends and neighbors particularly in circumstances where there is little to no family support. While most individuals do the right thing by the elderly there are instances of undue influence and the allegations of such have continued to become an increased area of practice for lawyers.

Many times the person having a caring and close relationship to an elderly person provides invaluable benefits to their continued wellbeing. Elder abuse does not occur simply because of this heightened influence however it can occur when a party uses the influence unduly or in extreme circumstances where duress is exerted by the caretaker or family member.

Undue influence is when the party holding an influence unduly affects the freewill of the individual such as in the making of their will or in the making of gifts. A carer, friend or child should only assist the elderly person and not make these decisions for them. Undue influence can also occur during the lifetime of the individual and there are often instances where intervivos gifts are made (gifts made during the lifetime of an elderly person) and whether an undue influence was placed upon the person when the gift was made.

In addition to undue influence duress is also an issue those worried about their elderly relatives and loved ones should understand. Duress comprises the following elements:

Pressure exerted in relation to a transaction;
The pressure is not legitimate;
The pressure is the key factor in the individual agreeing to the transaction; and
The elderly individual had no reasonable alternative other than to agree.

Obviously the vulnerability of the individual in each case is a key factor when lawyers advise clients and loved ones in relation to concerns raised about changes to wills and intervivos gifts.

We highly recommend that the easiest way to ensure that there is no undue influence and to ensure the will or any intervivos gift made by an elderly loved one is not challenged is to have the elderly person receive proper legal advice.

We often assist clients in making gifts and ensuring that they have made these decisions of their own free will whether it be an intervivos gift or a gift in a will. We can also seek answers for those who believe there has been an undue influence on the individual. Please feel free to call CJM Lawyers on 1300 245 299 to make an appointment with one of our will and estate planning lawyers who will be happy to assist you.

Buying a property at auction

Tue, 09 Nov 2021 05:23:25 GMT

Properties can be purchased by way of private sale or through a public auction. Due to the recent rise in real estate prices and the competitive property market, auctions have become a more popular means of selling properties. There are various legal factors that need to be taken into consideration when purchasing at auction. Accordingly, it is essential to consider the process involved.

At an auction, various prospective buyers will bid against one another to purchase a property. If you are the highest bidder, you will be required to sign a contract and will be immediately bound by the terms of the contract. Consequently, you must settle the contract regardless of whether you change your mind, you can’t afford the property or the property doesn’t pass inspections.

Cooling Off Period

A 5 day cooling-off period normally applies to a contract of sale of residential property in Queensland , however when purchasing a property at auction, the contract of sale is exempt from the cooling-off period. This means that, as the purchaser, you do not have the opportunity to terminate the contract on a cooling-off basis.

Terms of Sale

Generally, due to the terms of sale, you are required to bid at auction on an unconditional basis. In this circumstance, you cannot elect to enter a contract subject to conditions such as finance, building and pest or have the contract subject to completion of a prior sale.

Finance Condition

It is essential that you secure funding to complete the purchase because, if you are the successful bidder, you will be required to fund and settle the purchase without the option to terminate pursuant to a finance condition. Prior to the auction, it is recommended that you seek the advice of a mortgage broker to determine your prospects and the process involved in obtaining funding for the purchase.

Building & Pest Condition

Generally, the seller will have engaged an independent building and pest inspector to inspect the property. Accordingly, the real estate agent will have a copy of the building and pest report to provide to prospective bidders and it is recommended that you obtain a copy of the report. Alternatively, you can arrange to engage your own independent inspector before the auction date.

Prior to the Auction

Due to the risk involved in bidding on an unconditional basis at auction, it is recommended that you address the following factors prior to bidding:

Inspect the property;
Arrange for building and pest inspections;
Conduct due diligence enquiries;
Determine the value of the property;
Arrange finance to fund the purchase;
Conduct searches on the property;
Obtain a copy of the proposed contract; and
Seek legal advice regarding the terms of sale.

It is essential to protect yourself as purchasing a property is generally one of the largest outlays in your life. You should be mindful and aware of the pitfalls so that you can comfortably attend and bid at an auction.

If you are considering bidding at an auction, CJM Lawyers’ experienced solicitors can provide you with advice at any stage throughout the auction process, including reviewing the proposed contract of sale. Our property lawyers can be contacted on

1300 245 299 .

第五解印花税

Mon, 01 Nov 2021 04:30:09 GMT

印花税，又称转让税，是指在一些交易过程中所产生的税。常用于以下交易中：

(a). 需征税的房产转让，例如一般赠予。

(b). 有协议的财产转让，例如房屋买卖合同和生意买卖合同。

(c). 合伙企业收购, 例如以合伙人形式存在的生意中的股权转让。

(d). 应缴税财产信托的设立和终止。

(e). 信托的转让。

在昆士兰州，房产买卖属于财产转让中的一种，所以需要缴纳印花税。大部分情况下，印花税是由买家支付.应缴纳印花税的金额是由合同的价格决定的，合同价格越高，需缴纳印花税越多。外国人如果购买澳洲房产，需要缴纳额外7%的印花税。如果夫妻双方共同购买一个房产，其中一个买家是外国人，则他需要缴纳他持有那部分房产比例的印花税。但是，根据买家的自身情况，会有以下几种印花税减免：

1. 首次自住房印花税减免

申请条件：

(i). 买家必须年满18周岁，之前没有申请过首次购买自住空地印花税减免, 并且之前在澳洲和海外没有持有任何住房。

(ii). 在交割后一年之内搬进该房产（市政府，水费账单作为凭证），且在交割后搬进去之前不能处理该房产（出租或转让）。另外，如果交割之前合同里有租客，租客必须在交割后六个月内或租约到期之后搬走。

(iii). 房产的价格必须在55万澳币以下。

优惠幅度：

(i). 如果房产价格低于50万澳币，您不需要缴纳印花税。

(ii).如果房屋价格在50万到55万之间，您可以享受部分减免。

如果政府发现您没有满足以上任何一个条件，之后都会追缴您减免部分的印花税。

2. 首次购买自住空地印花税减免

申请条件：

(i). 买家必须年满18周岁，之前没有申请过首次购买自住空地印花税减免, 并且之前在澳洲和海外没有持有任何住房。

(ii). 空地价格必须在40万澳币以下。

(iii). 在买之前确认这是一块空地，上面没有任何建筑物，在交割后两年之内必须建好房搬进去，并且只能在该空地上盖一个房子。

(iv). 在交割后一年之内不能处理该房产（出租或转让）。

优惠幅度：

(i). 如果土地价格低于25万澳币，您不需要缴纳印花税。

(ii).如果房屋价格在25万到40万之间，您可以享受部分减免。

如果政府发现您没有满足以上任何一个条件，之后都会追缴您减免部分的印花税。

3. 自住房印花税减免

申请条件：

在交割后一年之内搬进该房产（市政府，水费账单作为凭证），且在交割后搬进去之前不能处理该房产（出租或转让）。另外，如果交割之前合同里有租客，租客必须在交割后六个月内或租约到期之后搬走。

优惠幅度:

(i). 最多可以省七千多澳币。

(ii). 在计算方法上，房价中35万的部分会用特殊转让率去计算，超过35万的部分会用一般转让率去计算。

昆州的房产交易时而简单时而复杂，如果您需要律师，请添加文章下的二维码或拨打 1300 245 299 找杨律师（Jason）。

New Domestic Violence Payment

Wed, 27 Oct 2021 04:11:29 GMT

COVID-19 has meant a growing number of people have been working from home or are being forced to stay in their homes during state-wide lockdowns.

This has unfortunately resulted in an increase in domestic and family violence in the home with women needing assistance to escape their perpetrators more than ever.

As of Tuesday 19 October 2021, women fleeing domestic and family violence may be eligible for a $5000 emergency payment Escaping Violence Payment (EVP) to assist them and their children to leave, as part of the $1.1 billion women’s safety package contained in the 2021-22 Women’s Budget Statement.

The $5000 will be made up of $1500 in cash to assist women who need financial support leave the home and the remaining $3500 will be available to be paid for necessities such as rent, rental bond and school fees.

To be eligible for the one off $5000 payment, women will have to prove that they have been experiencing domestic or family violence and financial hardship.

How do I prove I am eligible?

In order to be eligible for the EVP, women will need to provide evidence that they have been experiencing violence and has recently left or is leaving their violent partner.

Violent behaviour includes:

Physically, verbally or sexually abusive
Emotionally, spiritually or psychologically abusive
Economically abusive
Threatening, coercive, or seeks to control or dominate the other person.

The type of evidence women will be required to provide in an application for the EVP includes, a police report an Apprehended Violence Order, a court order or a referral from domestic violence service provider.

How do I access the emergency payment?

Women can apply for the emergency payment through UnitingCare Australia at this website https://www.unitingvictas.org.au/services/family-services/family-violence-services/escaping-violence-payment/

The payments are not considered taxable or reportable income and will not have an impact on other social security payments which women may be accessing.

What next?

If you have been experiencing domestic or family violence you should get in contact with CJM Lawyers for a free initial consultation. CJM Lawyers can provide tailored advice and assistance to help with all your family law enquiries.

The Importance of a Will

Thu, 21 Oct 2021 23:48:01 GMT

When it comes to wills and estate planning, it’s hard to find a better-qualified partnership than husband and wife legal eagles Shannon and Eva McLaughlin.

It’s an offer too good to refuse.

Leading local legal firm Cronin James McLaughlin (CJM) Lawyers offers people a free consultation to discuss one of the most important legal documents they’ll ever sign – their will.

CJM Lawyers Partner Shannon McLaughlin says having a valid will that sets out who will receive your property and possessions when you die gives you the best chance of making sure your assets go where you want them to.

“Covid has brought mortality into our conversations, which has really impacted upon an uptick in people considering their estate planning needs, which is a good thing,” he says.

“Every adult should have a will. The less you are worth, sometimes the more important it is to have a will because the administration costs of your estate are cheaper if you have a will.”

Driven to obtain the best outcome for his clients, Shannon is a renowned legal problem solver with more than 20 years’ experience in family and commercial law.

A fourth-generation Gold Coaster with proficiency in corporate law, mergers and acquisitions, regulatory compliance, and business structuring , Shannon was admitted to practice in 2005 after completing his five-year articled clerkship and holds a Bachelor of Laws and a Master of Laws (majoring in the Commercial Stream) from the Queensland University of Technology and an MBA from Bond University.

Changes to Casual Employment Laws

Thu, 23 Sep 2021 01:03:59 GMT

Do you have casual employees?

Are you ready for 27th September 2021?

In March 2021, changes to the Fair Work Act 2009 (Cth) (FW Act) came into effect which significantly altered the definition and entitlements for casual employees.

These changes were brought about from the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (the Bill) and include:

adding a definition of a casual employee
providing a mechanism for casual conversion to allow casual employees to become permanent employees
placing an obligation on employers to provide a Casual Employment Information Statement (CEIS) to new and existing casual employees
a statutory set-off provision which allows the Court to reduce amounts payable for statutory leave and entitlements by the casual loading

Employers , other than Small Business Employers as defined under the FW Act, who employ casual employees employed before 27 March 2021 are required to comply with the casual conversion provisions and assess all casual employees for conversion by 27 September 2021.

What employers must do to comply?

The FW Act requires an employer to make an offer of permanent employment where they meet the eligibility criteria. The eligibility criteria include:

Has the employee been employed by the employer for a period of 12 months or more?
Has the employee worked a regular pattern of hours on an ongoing basis during the last 6 months of employment?
Could the employee continue working these hours without significant adjustment?

Before 27 September 2021, employers must identify all existing casual employees employed before 27 March 2021 and assess whether they are eligible to be offered to convert to permanent employment. When assessing if an employee is eligible, employers must take into account:

the eligibility criteria; and
any reasonable grounds that prevent an employer from making an offer of conversion.

Reasonable grounds must be based on facts that are known or reasonably foreseeable at the time of deciding not to make the offer. Employers then need to provide a written notice to each employee notifying them if they are eligible or not for casual conversion.

Where an employer does not make an offer of casual conversion, they are required to provide the reasons explaining why they won’t be making an offer.

If an employee accepts an offer to convert, employees need to respond to the offer within 21 days. If an employee fails to respond in this timeframe, the employer can assume the employee has declined the offer. Employers must also issue a copy of the CEIS to all remaining employees. A copy of this can be found on the Fair Work Ombudsman’s website .

Employee requests for casual conversion

An eligible employee employed after 27 March 2021 can request an employer, other than a Small Business Employer, to covert to permanent employment from 21 days after their 12 month work anniversary. Existing eligible employees, except those employed by a Small Business Employer, who were employed before 27 March 2021, can make a request for casual conversion from 28 September 2021.

If you are a Small Business Employer, an eligible employee employed after 21 March 2021 can make a request to convert to permanent employment any time on and from their 12 month work anniversary. Eligible existing employees employed by a Small Business Employer can make a request for casual conversion any time.

An employee is unable to make a request for permanent employment if, in the last 6 months:

the employee has refused an offer of permanent employment by the employer
the employer has advised the employee that they would not be making an offer of permanent employment and advised them of the reasonable grounds for doing so
the employer has refused a request for casual conversion on reasonable grounds

Employees may be able to make a request within 6 months after the employer has advised they will not be making an offer on reasonable grounds because the employee hadn’t worked a regular pattern of work for 6 months. This is only applicable where the employee hadn’t worked a regular pattern of work for 6 months or more before the earlier request, but at the time of the new request they have.

The request must be in writing and be for:

full-time employment, if the employee’s hours worked for the last 6 months or more have been equivalent to full-time hours
part-time employment, if the employee has worked a regular pattern of hours within the last 6 months or more, if the employee has worked the hours for the last 6 months or more and were less than full-time hours.

The employer must have reasonable grounds to refuse a request and provide those reasons to the employer in its response to the request. The employer cannot refuse a request unless they have discussed the reasonable grounds to refuse the request with the employee directly.

After a request has been accepted

If an employer receives a request from an employee, the employer must respond to the request in writing within 21 days from the request. The response should include if the employer has accepted or rejected the request. Before the employee can convert to permanent employment the employer and employee must discuss the following:

Whether the employee will be employed on a full-time or part-time basis
The hours of work the employee will performing as a permanent employee
The start date of the employee

Call CJM Lawyers on 1300 245 299 to discover how our employment lawyers can assist.

第四解，REIQ合同中的三种税-商品服务税，外国居民资本利得预扣税和土地税。

Thu, 16 Sep 2021 04:32:22 GMT

前三章我们讲了合同里一些重要的条款，今天我们来讲一下大家比较关心的税务问题，一般土地交割会涉及到四种税，我会把耳熟能详的印花税放到下一章来讲，这一章我先来介绍一下另外三种，他们是商品服务税（Good Service Tax)，资本利得税（Capital Gains Tax)和土地税（Land Tax)。

1. 商品服务税预扣留款

商品服务费（Good Service Tax)，简称GST，一般用于出售商品或购买一些服务时需要交税。但在REIQ合同中，一些情况下，卖家在出售自住房或用于建自住房的空地时，需要缴纳商品服务税。一般情况下，除非有特殊说明，合同价格会包含商品服务税。在交割之前，买家需要根据卖家提供的书面通知向澳洲税务局进行预扣留款的登记。需要登记这笔交易中会有多少的扣缴金额。

扣缴金额的多少取决于卖家要用什么形式支付商品服务税，这里有三种方式。

(i). 如果是正常支付GST,卖家需要付全款的商品服务税，需要预扣留合同价格的1/11.

(ii). 如果是用商品服务费增值税方案 (GST Margin scheme)，需要预扣留合同价格的7%。增值方案一般是卖家公司常用的一种方案，因为卖家只需要缴纳之前买入的价格和现在出售价格中间差额的1/11。但是，增值方案只能在一些条件下才能使用：

a.买家必须书面同意卖家使用增值方案。

b.之前买入改房产的合同中，合同价格不能包含全额的GST。

c.原卖家没有注册GST（通常情况下是指个人），如果原卖家是公司且注册gst，那么之前的交易中也必须用了了增值方案。

(iii). 如果是交易过程中包含非非货币交换，比如土地互换。则扣缴金额计算为总货币价格（包括商品及服务税）加上非货币价值（包含消费税市场价值）的一部分。

如何缴纳商品服务税预扣留款。

在房产交割的时候，买家必须要从交割款中开出一张缴纳给税务局的预扣留款的支票，在交割的时候交给卖家，由卖家交给税务局。税务局收到支票后，会从预扣留款中扣除本次交易应缴纳的数额。剩下的数额会当作信用额度计算在该公司名下，用于改公司抵消以后应交的商品服务税。

2. 外国居民资本利得预扣税

一般来说，资本利得税就是纳税人在固定资产转让时为产生的利润差而交的税，一般来说自住房是不用缴纳资本利得税的，所以目的是对非澳洲纳税居民进行征税：

在房产买卖中，澳洲政府会把卖家假设成外国纳税人，所以如果交易价格超过75万澳币，买家要在交割的时候要把资本利得税的支票开出来，支票的金额一般为合同价格的12.5%。但是卖家可以在交割前向政府申请清税证明，就不用交这笔钱：

(i) 卖家可以在交割前向买家提供关于这个房产的清税证明，这个需要去向政府申请。

(ii) 卖家也可以在交割前向买家提供卖家声明（Vendor declarations），声明本次交易不需要预扣留款，其中有两种形式的声明方式。

a. 声明卖家是澳洲本地税务居民。

b. 声明卖家处理的房产的权益不是间接的澳洲房产的权益。

3. 土地税

土地税一般用于纳税人在昆州拥有多处房产，税务局会计算纳税人在本财年所有房产价值的总和，来征税。一般来说，公司和个人会有不同的起征点。

(i). 对于公司或信托来说，起征点是35万。

(ii). 对于个人来说，起征点是60万。

一般在房产买卖中，买家律师会调查这块土地是否欠土地税。一般调查完之后会有三种结果：（Land tax clearance certificate)

(i). 清税证明：在调查完之后，税务局会提供一个清税证明，来证明这个房产没有欠税，这样在交割的时候就不用调整。

(ii). 本财年土地税没有交：这种情况下，税务局会给一个账单，按照账单里需要缴纳的数额，买家可以从交割款里开一张支票进行缴纳。也可以从让卖家自行缴纳，从而拿到清税证明。

(iii). 第三方通知(GARNISHEE NOTICE): 如果我们收到的结果是第三方通知，证明卖家在之前的财年就有欠土地税，这个时候买家必须要从交割款里开出一张土地税的支票。来换清所有的土地税。

第三解，泳池安全证明问题。

Thu, 09 Sep 2021 05:20:55 GMT

在这个系列前两章，我们提到了essential terms和比较重要的两个买家条款，今天我们来说一下第三个重要的买家条款，泳池安全证明条款。

什么是泳池安全证明

在昆州的法律中规定，如果一个房产里有泳池, 房主必须在泳池周围建起围栏防止人直接进入跌入泳池发生意外。所以，对围栏的标准做了一些要求，比如围栏的高度不能少于1.2，进泳池的门不能设计成向内打开，还必须带有自动关闭和自锁等功能。在昆州合同买卖中，卖家有义务在泳池周围建立符合要求的围栏防护，买家有义务在检查日之前找专业人士检查并提供 FORM 23 (泳池安全证明)，来证明泳池周围的围栏安装条件是符合昆州泳池安全标准的。

在REIQ合同里，如果房产带泳池，房主有泳池安全证明，那合同里必须写明泳池安全证明的到期时间，一般共享泳池的安全证明期限是一年，别墅里单独泳池的期限是两年。同时卖家必须给买家提供泳池安全证明。如果合同里没有泳池安全证明或该证明过期，那卖家必须在签订合同之前向买家提供FORM 36（无泳池安全证明通知）。如果买家在知道卖家里没有泳池安全证明的情况下购买了这个房子，那这边法律规定，买家必须在交割90天之内自费拿到泳池安全证明。如果不遵守昆州泳池安全法，对于个人来说，最高有$22,019.25的罚金，对于公司而言，最高有110,096.30的罚金。

在REIQ合同中规定，一些别的证明也可以代替泳池安全证明。比如一些新建泳池的建筑证明，一些特殊类型豁免证明。如果房产里带泳池，但是以上这些证明都没有，卖家不但要在合同签订前给买家提供FORM36，还要向昆士兰建设委员会提供声明。如果卖家没有做到这些，他同样可能面临最高$2,356.00的罚款。

REIQ合同中泳池安全证明条约

如果房产中带泳泳池，房主在签订合同前不能提供安全或豁免证明，除了向买家提供FORM36，REIQ合同中也要加入泳池安全证明条约。条约中规定在泳池安全检查日到期前，(1) 买家要做 FORM 23(泳池安全证明)。(2) 或者是FORM 26 (持牌泳池安全检查员签发的泳池不合格通知，要说明在签发泳池安全证书之前所需的工作)。如果合同里没有写明泳池安全检查日期，日期会默认为交割前两个工作日。一般来说，在检查日当天，买家会自费请检察员在经过卖家的授权情况下去家里检查。如果FORM 23(泳池安全证明)没有在检查日到期前批准下来，买家可以通知卖家解除合同。或是自动放弃改该条款。如果买家没有在检查日当天五点之前通知卖家是否要解除合同，那么卖家有权通知买家解除合同。买家的定金都会全部退还给买家。买家必须尽力去获得安全证明。如果买家想以泳池安全证明条约解除合同，买家要在卖家的要求下立刻提供FORM 26，来证明买家有努力去获得泳池安全证明。

REIQ合同外的泳池安全问题。

在房屋买卖中，如果出售的房产是公寓或有物业的小区，一般是小区物业来提供泳池安全证明。

在昆士兰州，不但泳池需要安全证明，一些深度超过0.3米、容积超过2000升的水疗中心和便携式游泳池也需要泳池安全证明(浴缸不算，因为水会在用完后放掉）。我们在代表客户买房时，曾遇到卖家并不知道家里的水疗池需要做泳池安全证明，直到我们客户的贷款银行去房子那里进行估价才发现这个问题。

昆州的房产交易时而简单时而复杂，如果您需要律师，请添加文章下的二维码或拨打 1300 245 299 找杨律师（Jason）。

第二解，买家的两把“保护伞”-贷款条款和建筑及虫害条款。| CJM Lawyers

Wed, 01 Sep 2021 22:59:29 GMT

REIQ是Real Estate Institute of Queensland的简称，REQI CONTRACT是澳洲昆士兰房地产研究所编写的合同，常用于昆士兰洲的二手房买卖。所以了解合同对您在昆士兰州购房或卖房至关重要，我们将做10期带大家来了解一下REIQ的基本合同。

上一期我们就带大家了解一下REIQ合同中最重要的信息，ESSENTIAL TERM 基本条款。接下来两期我们来谈一谈，合同里常见的买家条款，这些条款 (condition) 是买家的保护伞，在这些条款到期之前，买家一般都可以无损失的退出该合同。但是一旦合同进入无条件时，主动权就会转移到卖家那边，即使买家有合理的理由想要延迟交割，除非合同特殊规定外或卖家同意，如果没有按时交割，卖家都是有权结束合同并且没收定金。

条款的种类有很多，一般都是合同双方为了交割的诉求而设定的一些条件。像贷款条款是为了确保买家有足够的资金去交割，建筑及虫害检查条款是为了确保房屋没有什么潜在问题，政府对外国人购房批准条款（FIRB）也是为了确保海外买家在交割前能拿到政府的批准。

1.贷款条款

什么是贷款条款

一般，在购买房产中，很多买家都会选择贷款买房，在合约签订后，银行会去给这个房产进行估值（valuation），然后根据买家的借贷能力等因素来决定能给买家贷多少钱。一旦拿到贷款金额，买家律师可以帮买家算出交割时还差多少钱（Shortfall Funds），如果买家发现自身存款并不足以完成交割，买家时可以根据贷款条款无条件解除合同拿回定金的。

贷款条款在REIQ合同中的作用。

贷款条款在REIQ合同中占了很重要的一笔，因为经常出现，所以它和合同价格一样被放在了合同开头的参考列表里，一般在REIQ合同中的第三页，合同价格下面。其中包括了贷款金额，贷款机构和贷款日期。这里面最重要的是贷款日期，上面写出的时间将代表贷款条约的到期日，就像第一解里面提到的，时间在昆士兰州是很重要的基础条件，任何逾期行为将被视为违约，所以合同也对时间节点做了详细的划分。其中规定，买家律师必须在贷款条款到期日下午五点之前书面通知卖家律师买家是否满意或不满意，或主动放弃在贷款条款中的权益（解约的权利）。如果给出满意或放弃权利的通知，合同会进入下一阶段。如果不满意，买家是可以解除合同拿回定金。如果没有在五点之前没有给出书面通知，卖家是有权利解除合同的。这里值得注意的是，如果买家律师在五点之前给出申请贷款延期通知，卖家律师是没有义务必须在五点之前回复你的。一旦超过五点，卖家律师还是有权解除合同的。但是，如果买家律师在卖家解除合同之前给出满意或主动放弃权利通知，合同依然会进入下一阶段。

2. 建筑及虫害条款

什么是建筑及虫害条款

在昆州买房，一般会找专业人士做一份详细的房屋和虫害检查报告，专业的检查人士会去房产那进行实地考察，然后在建筑检查报告里列出什么地方该修，有没有结构损害等一系列建筑问题。因为澳洲房产大多数是木制结构，所以特别怕白蚁。虫害报告里就会详细的列出该房产会不会受到白蚁的危害，曾经有没有白蚁活动的痕迹和未来会不会受到白蚁的困扰。请注意，因为我们律师不是建筑领域的专业人士，所以不会给买家提供关于房屋修理的建议，买家应该向检查员咨询该房产是否值得购买，是否有结构性损坏和哪里需要卖家修理。如果有需要大修的地方，买家应该进一步请人对需要修理的地方进行报价。从而重新评估购买该房产的价值和花费，之后再告诉律师需要修理的地方或是否需要卖家减价。由买家律师转告给卖家律师，再由卖家律师转告给卖家。

合同里对建筑及虫害条款的时间规定和贷款条款一样，都需要买家律师在下午五点之前给出书面通知，否则卖家有权利在五点之后解除合同。

昆州的房产交易时而简单时而复杂，如果您需要律师，请添加文章下的二维码或拨打 1300 245 299 找杨律师（Jason）。

High Court overturns decision for casuals to claim paid leave entitlements

Wed, 25 Aug 2021 23:10:25 GMT

The High Court of Australia has overturned the Federal Court decision in WorkPac v Rossato [2020] FCAFC 84 in a unanimous decision putting an end to the idea that some casual workers may be entitled to leave entitlements, such as annual leave, sick leave, and holiday pay.

Employer groups have claimed this decision will stop potential backpay claim against employers totalling $40 billion.

Previous decisions

In 2018, the Full Court of the Federal Court [1] found that, in the absence of a definition of casual employment under the Fair Work Act 2009 (Cth) (FWA), the courts would look at the true nature of the employment relationship. This is regardless of whether an employer calls the arrangement “casual”.

In fact, the court made the finding that a casual employee was actually a permanent employee (and entitled to accrue leave and other benefits), the written terms of the enterprise agreement and employment contact expressly stating the employment was casual.

In making this decision, the Court looked at the employee’s pattern of work and determined that his work was regular, systematic and predictable, and that meant it had the characteristics of permanent employment, not casual employment.

The recent High Court decision

In this recent decision, Mr Rossato (the applicant) worked for WorkPac as a production coal mine employee for a period of four years on six separate consecutive casual contracts between 2014 and 2018 (collectively, Employment Contracts).

Throughout his employment with WorkPac, Mr Rossato was treated as a casual employee and was paid pursuant to the Workpac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 (EBA) as a casual employee. Under the EBA a casual employee was entitled to be paid a higher rate of pay, however, was not entitled to accrue statutory leave entitlements such as annual leave, sick leave, and holiday pay.

After ceasing employment with Workpac in 2018, Mr Rossato claimed that he was a permanent employee on the basis that his employment was ongoing, regular and systematic pursuant to the Federal Court case law. Accordingly, Mr Rossato claimed he was entitled to be paid his outstanding leave entitlements under the FWA and the EBA.

The High Court found that a casual employee is an employee who has no “firm advance commitment of work from an employer as to the duration of the employee’s employment or the day (or hours) the employee will work”. However, it stated that “a mere expectation of continuing employment on a regular and systematic basis is not sufficient” to render the employment permanent in nature.

The High Court found that Mr Rossato’s employment was truly casual, having regard to the following facts:

Mr Rossato was engaged on an “assignment-by assignment basis”;

he was entitled to accept or reject any offer of employment;

WorkPac was not under any obligation to offer any further assignments and there was no commitment to ongoing employment beyond the completion of each assignment, and

the casual assignments could be varied or terminated with minimal notice.

The Hight Court also held that where an employment agreement expressly states the nature of the employment relationship, and the parties adhere to the terms, there must be a firm advance commitment of work found within the terms of the agreement for the employee to be considered otherwise. In this matter, the employment contracts provided for variations of Mr Rossato’s daily working hours and assignment length, supporting the casual nature of the employment.

What does this mean for employers?

The High Court’s decision in Workpac v Rossato provides clarity for employers who engage casual employees under a contract of employment.

In addition to the High Court’s decision in Rossato, there have been legislative changes to the FWA whereby a definition of casual employment has been added (Amending Legislation).

The Rossato decision and the Amending Legislation provides greater certainty to employers on the nature of the employment relationship where a casual contract of employment does not give rise to “a firm commitment to ongoing employment”.

Employers should get in contact with CJM Lawyers now to have their casual contracts of employment reviewed to ensure that terms for casual employees support the nature of the work being performed.

[1] WorkPac Pty Ltd v Skene [2018] FCAFC 131

昆州房产买卖REIQ合同10解

Wed, 25 Aug 2021 06:05:22 GMT

第一解：REIQ合同中的基础条款（Essential Terms）

1.什么是REIQ合同？

REIQ是Real Estate Institute of Queensland的缩写，REQI合同是澳洲昆士兰房地产研究所编写的合同，常用于昆士兰洲的二手房买卖。所以了解合同对您在昆士兰州参与房产买卖至关重要，我们将做10期文章带大家来了解一下REIQ合同中的重要条款。

2. 什么是基本条款（Essential Terms）？

在REIQ合同中，有一些买家和卖家必须遵守的基本条款，一旦一方违约，都有权让另一方直接解除合同。

3. 买家的基本条款:

1. 买家必须在合同规定日期内支付定金；

2. 买家必须在交割当天支付定金尾款和任何应该买家分摊的房屋支出（水费，市政费和物业费）；

3. 如果涉及到包含商品服务预扣税（GST Withholding）的房产交易，买家律师必须在交割前用澳洲税务局（ATO）的表格对该交易进行登记。

4. 买家必须在交割日进行交割。除双方同意或合同里特殊规定，交割必须发生在交割日上午九点到下午四点之间，交割地点和时间通常由卖家律师决定。

5. 如果合同涉及房屋和虫害检查条款，贷款条款或泳池安全检查条款，买家律师必须在规定日下午五点前通知卖家律师是否满意这些条款。一旦逾期，卖家都有权在收到该通知之前解除合同。

4. 卖家的基本条款：

1. 如果涉及到包含商品服务预扣税（GST Withholding）的房产交易，卖家律师必须在交割前通知买家律师，卖家需要交GST。并且在交割时开出相关支票，或之间支付给ATO。

2. 除合同里有特殊指出，卖家必须在交割日下午四点前交割；

3. 卖家必须在交割前提供交割表，如果有银行，贷款银行要同时提供银行的贷款解压文件。

4. 在交割前将钥匙给指定中介，或在交割时将钥匙交给买家律师；

5. 如果房屋上有租约，交割前协助买家办理转租手续；

6. 如果没有租约，交割时要给买家空置的房屋，但是可以留下之前商量好会留给买家的家具。

5. 违反基本条约的后果：

1. 如果买家违反基本条约，卖家可以:

a. 继续合约；或

b. 解除合约，没收定金，并且重新出售房产和起诉到法院，要求买家补偿因为解约给卖家所带来的损失。

2. 如果卖家违反基本条约，买家可以：

a. 继续合约；

b. 起诉到法院，要求卖家强制执行该合约；或

c. 解除合同，拿回定金，并起诉到法院，追诉因解约所带来的损失。

昆州的房产交易时而简单时而复杂，如果您需要律师，请添加文章下的二维码或拨打 1300 245 299 找杨律师（Jason）。

Have you been unfairly dismissed?

Wed, 11 Aug 2021 01:22:00 GMT

What you can do if you have been unfairly dismissed?

Unfair dismissals occur when an employee has been unfairly dismissed from their job.

In Australia, an employee can challenge an unfair dismissal by making a statutory claim for an unfair dismissal remedy in the Fair Work Commission or a State Industrial Relations Commission, depending on the employer.

Unfair dismissals in the federal Jurisdiction are governed by the Fair Work Act 2009 (Cth) (FW Act), which protects employees from unfair dismissal where the employee:

a) has been employed for at least 12 months where the employer has less than 15 employees or 6 months where the employee has more than 15 employees; and

b) where one or more of the following applies:

a. the employee earns below the high-income threshold;

b. the employee is covered by a modern award;

c. where an enterprise agreement applies to the employees employment.

Has there been a dismissal?

The FW Act states that an employee is considered to be dismissed where:

the employee has been terminated from their employment on the employer’s initiative; or
the employee was forced to resign from their employment because of the conduct or course of conduct of the employer (this is also known as constructive dismissal); or
the employee was demoted which resulted in a significant reduction in their remuneration; or
the dismissal is not a case of genuine redundancy.

Casual Employees

In some circumstances an employee may not know if they have been dismissed from their employment. This can occur when an employee is employed on a casual basis.

Casual employees are usually employed on an hourly, daily or weekly basis, without any commitment from the employer as to ongoing employment.

However, in some cases casual employees work regular and systematic shift patterns. If this is the case, a casual employee may be entitled to make an unfair dismissal application where the employer ceases to provide them with future work.

Constructive Dismissal

Constructive dismissal is a term commonly used where an employee feels that their employer has taken adverse steps against them in order to get them to resign from their employment.

However, in order for a resignation to be deemed a constructive dismissal, an employee will need to prove that they had no other option but to resign from their employment.

In Weber v Deakin University [1] Mr Weber resigned from his employment following a period of illness. After a significant period of time, the University ceased trying to obtain further independent medical assessments in respect of Mr Webers ability to return to work.

Mr Weber made an application for an unfair dismissal remedy to the Fair Work Commission stating that he had no other reason but to resign on the basis that the University refused to make reasonable adjustments to allow him to return to work.

Commissioner Roe rejected Mr Webers claim stating “I cannot identify any actions by Deakin that were intended to force Mr Weber to resign or has the probable result that he would resign, or which left him with no real choice but to resign.”

In circumstances where an employee feels they have no other option but to resign, CJM Lawyers strongly recommends seeking legal advice prior to resigning.

Was the dismissal unfair?

Where an employee can satisfy the Commission that they have been dismissed and are protected by the unfair dismissal laws, the Fair Work Commission will make a determination as to whether the dismissal was unfair.

In doing so the Fair Work Commission will consider the following:

1. if the dismissal was harsh, unjust or unreasonable; and

2. if the dismissal was inconsistent with the Small Business Fair Dismissal Code.

In determining if the dismissal was harsh unjust or unreasonable, the Fair Work Commission will consider the following:

3. if the employer had a valid reason for the dismissal;

4. if the employee was afforded procedural fairness and/or if the evidence before the employer supported a conclusion that the employee ought to be dismissed;

5. if the punishment fits the crime or was disproportionate to the conduct alleged; and

6. if the dismissal was harsh, taking into account the employee’s length of service, performance and conduct history and personal circumstances.

What remedies are available to me if the Fair Work Commission determines my dismissal was unfair?

The primary remedy for an unfair dismissal is reinstatement, however, reinstatement is rarely awarded. This is on the basis that once a dismissal has occurred there is usually a breakdown in the employment relationship. The Fair Work Commission is reluctant to reinstate the employment relationship where this has occurred.

The more common remedy is an order of payment of compensation. The maximum compensation payable is 26 weeks’ wages.

Any award of compensation by the Fair Work Commission is determined by taking into account a number of factors. These include:

the loss of wages to the employee as a result of the dismissal;
the length of the employee’s services and the time in which it may take the employee to find new employment (if they haven’t already);
the employee’s conduct leading up to the dismissal, including whether the employee engaged in misconduct;
the likely length of service the employee would have had with the employer had they not been unfairly dismissed; and
the steps taken by the employee to mitigate their loss of income following the dismissal.

In circumstances where the employee finds new employment following the dismissal, the employee’s loss will be limited to the number of weeks between the dismissal and the commencement of the new position.

Where to from here?

All unfair dismissal complaints have a 21-day time limit , so if you are concerned that you have been unfairly dismissed from your employment, you should seek urgent advice from a lawyer experienced in employment law.

You can contact one of our employment lawyers on 1300 245 299.

New South Wales Commercial & Retail Tenant Protections

Wed, 04 Aug 2021 01:18:24 GMT

Overview

As of 14 July 2021, there may be new protections available to tenants under New South Wales commercial or retail leases from the Retail and Other Commercial Leases (COVID-19) Regulation 2021 (NSW).

If a tenant is struggling because of the second Sydney lockdown, landlords of some premises will be prevented from a number of actions against the tenant, provided that the tenant is able to satisfy the following criteria.

1. They qualify for one or more of the following existing grants:

a. The COVID-19 Micro-Business Grant;

b. The COVID-19 Business Grant; or

c. JobSaver;

and

2. They had a turnover of less than $50million in the 2020-2021 financial year.

Naturally, there are further and specific requirements contained in the existing grants listed above; however, they do apply to leases outside of the Greater Sydney area, not just in the suburbs of Sydney that are directly locked down.

The New Protections

If a tenant satisfies the criteria, then landlords will be prevented from taking a “prescribed action” against them for a “prescribed breach” in the period between 12 July 2021 and 20 August 2021.

The prescribed actions include:

Evicting the tenant;
Terminating the lease;
Claiming damages against the tenant;
Claiming interest on unpaid money;
Claiming against a bank guarantee or security bond; and
Any other adverse action against the tenant under the lease or at law.

A prescribed breach includes:

Failure to pay rent;
Failure to pay outgoings; or
Failing to operate for the required hours specified in the lease.

What About After the Period?

The new protections do not mandate any form of rent relief for the period, that means, whilst landlords are prevented from taking any of the prescribed actions against a tenant during the period, it does not alleviate the tenant from their obligations under the lease.

It is entirely up to landlords and tenants to negotiate any rent relief or allowances during the period, including the terms of bringing payments back up to date, and there appears to be very little guidance at this stage as to whether there are any principles or requirements in this negotiation, although it is assumed that the parties will act in good faith.

Only after negotiations have failed, and the parties have attended mediation on the matter (which has been certified as unsuccessful) will a landlord be able to take a prescribed action.

Moving Forward

Whilst this new piece of legislation does lack a degree of certainty that may be relied upon, these are, indeed, uncertain times.

They do; however, provide some comfort, and hopefully encourage both landlords and tenants to open communication, and negotiate to a mutually acceptable and commercial outcome.

Although the period expires relatively soon, on 20 August 2021, the new Regulation is in force until January 2022. This leaves room for the period to possibly be extended, depending on the ever evolving COVID-19 pandemic.

Moving into the future, it would be wise for both landlords and tenants to consider the impacts of the pandemic that have been felt not only in New South Wales, but nationwide.

Avoiding uncertainty by including clauses in future leases detailing what will happen in these continuing, and future pandemics, would provide a sense of security to both parties and allow a commercially minded frame for negotiations.

If you require any assistance during either this time, or with future lease plans, CJM Lawyers has an experienced team of commercial and property lawyers who are here to help.

COVID-19 vaccinations and the workplace

Mon, 02 Aug 2021 01:05:17 GMT

Until recently, COVID-19 vaccinations were not mandatory for any workers working in Australia.

On 28 June 2021, the National Cabinet decided to mandate the first doses of COVID-19 vaccinations for all Aged Care workers.

On the same day, the New South Wales Government issued a public health order preventing workers employed in the NSW public sector, specified in the NSW Airport and Quarantine Workers Vaccination Program, from attending or providing services to a workplace if they have not received the first dose of the vaccine.

Queensland is yet to mandate the vaccine.

Can an employer require an employee to be vaccinated?

For employees who work in industries where COVID-19 vaccines have not been mandated, an employer may be able to require employees be vaccinated against the coronavirus in reasonable circumstances.

Whether or not an employer’s direction to an employee to be vaccinated is reasonable will depend on the facts of each case. Some of the factors that may be taken into consideration in assessing if the direction is reasonable include:

if the employee is covered by an enterprise agreement or employment contract that includes a term allowing the employer to direct an employee to be vaccinated against COVID-19;
if the employee is vulnerable to serious illness resulting from COVID-19 infection;
if the employee is at risk of coming into contact with someone with COVID-19 during the course of their employment;
if the employee works with vulnerable people, such as elderly people or immunocompromised people; and
if the employee performs work that is of a critical nature and/or has an emergency function.

There may be legitimate reasons why an employee cannot receive the COVID-19 vaccine. Should this be the case, the employee should provide a medical certificate to their employer. Employers should take this evidence into account, however, it does not necessarily prevent an employer from requiring an employee to have the vaccine. In these circumstances, it may be lawful for the employer to refuse to provide the employee with work or, in exceptional cases, terminate their employment. CJM Lawyers strongly recommends employers seek legal advice prior to rolling out mandatory vaccination regimes.

What if I am dismissed because I cannot receive the vaccine?

Employees may have some protections under Australian anti-discrimination laws which generally prohibit discrimination against an employee on the basis of a protected attribute, such as a disability, pregnancy or religious beliefs.

Will I have to cover the costs associated with receiving the COVID-19 vaccine?

Where an employer reasonably directs an employee to be vaccinated against COVID-19, the employer may be liable for the associated costs. This will depend on the amount of out-of-pocket expenses associated with the vaccination, the time taken to obtain and recover from the vaccination, and the terms contained in the employment contract or any applicable industrial instrument.

Where an employee chooses to obtain the COVID-19 vaccination despite the employer not mandating the vaccine, there is no obligation for the employer to pay the employee to be vaccinated against COVID-19.

In these circumstances, if an employee does decide to be vaccinated against COVID-19, the employee should discuss with the employer if they can access any of the following options to allow the employee to attend a COVID-19 vaccine appointment:

taking paid or unpaid leave;
adjusting the employee’s hours of work to arrive at work later or finishing early; and
working from home to assist the employee to attend a local vaccination centre.

What happens if an employee refuses to be vaccinated against COVID-19?

Where an employee refuses a reasonable direction to be vaccinated against COVID-19, the employer can take disciplinary action against the employee, which may include termination of employment.

When should you seek legal advice?

Employees should consider seeking legal advice before they refuse any direction from their employer to be vaccinated against COVID-19.

Employers should consider seeking legal advice before mandating vaccinations and/or taking any action against an employee who has refused a direction to be vaccinated against COVID-19.

Call CJM Lawyers on 1300 245 299 to find out how we can assist.

Business Interruption Insurance

Tue, 20 Jul 2021 01:13:35 GMT

Have you made a claim on your business insurance due to the Covid-19 pandemic?

There has been much uncertainty surrounding the extent to which businesses affected by the Covid-19 Pandemic can rely on their Business Interruption Insurance for COVID-19 related losses.

To resolve uncertainty, the Insurance Council of Australia (ICA) took the first business interruption insurance case in Australia to the court to clarify that its members’ policies did not cover pandemics.

The Insurers lost the case and sought to appeal the decision in the High Court which was subsequently denied by the High Court on 25 June 2021.

The Test Case

- 4 Policyholders were insured against Business Interruption Insurance under two different Insurance Policies and sought to make a claim for Business Interruption Insurance for loses resulting from the COID-19 pandemic.

- both policies referred to the now outdated Quarantine Act 1908 (Cth) (replaced by the Biosecurity Act 2015 (Cth)) which contained the following exclusion clause:

“The cover… does not apply to any circumstances involving ‘highly Pathogenic Avian Influenza in Humans’ or other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908 and subsequent amendments”

- The Insurers argued that the wording of the exclusion clause extended to diseases determined to be “listed human diseases” under the Biosecurity Act either because the Biosecurity Act was a “subsequent amendment” to the Quarantine Act or because references to the Quarantine Act were obvious mistakes and that it was clear the Insurers had intended to refer to the replacement Act.

- The New South Wales Supreme Court of Appeal rejected the Insurers’ argument on the basis that COVID-19 is not a diseased declared to be a quarantinable disease under the Quarantine Act and therefore the exclusion clause was not enlivened.

- The Court also rejected the Insurers’ argument that reference to the Quarantine Act was a mistake which can be corrected when construing the Contract.

What this Means for your Business

This landmark decision, although limited to specific policy wording, means that insurers cannot now rely on references to the Quarantine Act to deny liability in policies written in the same terms as the policies referred to in this test case. Insurers have now commenced proceedings in a second test case in the Federal Court of Australia to determine the meaning of policy wordings such as the definition of diseases, proximity of outbreak to a business and prevention of access to business premises due to a government mandate.

If your claim has previously been denied or if you have held off in making a claim because of the same exclusion in your policy (or similar), please contact Suzette Araneta on 1300 249 299 to find out how we can assist you.

CJM Lawyers’ Master Negotiator Brendan Madigan

Mon, 12 Jul 2021 23:48:08 GMT

Cronin James McLaughlin Lawyers (CJM Lawyers) has welcomed new partner Brendan Madigan to its team after a merger with his Tweed-based firm Adept Legal.

It’s one of the greatest misnomers people make about the law – that you have to go to court to get justice.

For CJM Lawyers Partner & Solicitor Brendan Madigan, it’s all about helping clients resolve disputes at the earliest opportunity.

“You can put a hell of a lot of energy and effort into a dispute that you’re emotional about, and at the end of the day, it can be a hollow victory for you because it could cost you more than you’re really going to get back. That’s why intelligent engagement at the start is so vital, and making efforts to resolve a case early is so critical,” he says.

“Probably the one thing that everybody thinks is that you will only get your justice through the court, or that if something is true and it happened, that you will be successful. Unfortunately, that’s not true. It’s about what you can actually prove. There are many truths that you may not have the proof for, and that will leave you without a remedy.”

Brendan, whose Tweed-based firm, Adept Legal, merged with CJM Lawyers in April, is a highly experienced commercial lawyer admitted to the Supreme and High Courts in 1994. The merger means CJM Lawyers now operate from four locations – Surfers Paradise, Chinderah, Tweed Heads and Cowra.

Renowned for delivering great advocacy and practical advice to his clients, Brendan offers a broad commercial practice, with particular focus on commercial, property, business law along with dispute resolution.

“You have to make some compromises if you want a resolution,” he says. “Why pay money to lawyers for an uncertain outcome, to run a case right through to the end of a contested hearing, if you can achieve pretty much your desired outcomes by early intervention?”

Brendan says early resolution is a goal shared by the courts.

“The first thing that judges love to say before starting trials or at directions hearings, when they are making trial directions for the preparations of a trial, is “are the parties sure that they have exhausted every avenue of resolving this because once we have a trial, I will then be deciding the case and I can only decide it one way – there’s only one loser and one winner”,” he says. “If you can resolve it with the assistance of your lawyers, or through alternative dispute resolution like mediation, settlement conferences or conciliation, then you can have two winners. Both parties can have the potential to reach an agreement that they can both walk away with and say I’m happy with the outcome to put it behind me.”

Professional in commercial dispute resolution and litigation, Brendan also holds the position of corporate counsel for a number of corporations. His approach is both diverse and ‘need specific’.

“Sometimes clients don’t really know what they want to achieve at the end of the day,” he says. “Sometimes what is really bothering them or concerning them is not something really about the case, but their dissatisfaction has manifested itself in their desire to bring the litigation, like in family provision claims where people have been left out of wills or treated, as they perceive, unfairly.”

Born and raised in rural Tumut, in the NSW Snowy Mountains, Brendan began his legal career as an articled law clerk at his local firm, Dawson Gain & Fletcher. After gaining valuable training and experience in general rural practice, he shifted his focus to commercial litigation and dispute resolution. In 2001, he moved to the Gold Coast to lead the litigation practice group at a prominent local law firm. Drawing on his extensive background in dispute resolution, Brendan established his own firm in Tweed Heads in 2006, concentrating on commercial, property, and business law.

Brendan’s merger with CJM Lawyers has kicked many goals for both firms’ clients Brendan says from his new office on the 9th floor of 50 Cavill Ave, in the heart of Surfers Paradise.

‘CJM aimed to broaden the focus and experience of their dispute resolution and litigation practice group, which I now lead. Through the merger, Adept clients now have access to a wider range of legal services, with lawyers focused on their specific areas of law.

It wasn’t the location that was the drawcard,” he laughs. “It was the people and the way they approach achieving their clients’ goals, along with the breadth of experience—the larger firm environment. It gives clients access to a wider range of knowledge and skills that a smaller firm can’t provide, while still offering the personalised attention and focus of a smaller firm.

Brendan says Adept Legal and CJM Lawyers share the same mission and values.

“You will see no change in the way we conduct our business,” he says. “It’s enabling me to focus and concentrate on my core area of practice which is dispute resolution.”

CJM Lawyers Introduce Ruth Jeffers

Tue, 13 Apr 2021 23:48:06 GMT

Gold Coast and Tweed Shire legal firm Cronin James McLaughlin Lawyers (CJM Lawyers) has welcomed Senior Associate Ruth Jeffers to the team at its Tweed Heads office in northern NSW.

Ruth joins CJM’s highly experienced and accomplished team of solicitors and conveyancers who strive to provide clients with the most professional level of service on everything from Family Law and power of attorney to debt recovery, retail and commercial leases, conveyancing, wills and estates, insolvency and bankruptcy, employment and contract law, banking and finance.

CJM Lawyers know that having professional advice to help protect your best interests is only the beginning when it comes to Family Law.

As an Accredited Practitioner in Family Law and a Senior Associate at the firm, Ruth brings extensive experience in matters involving children and parenting disputes, property settlements, separation and divorce, de facto and same-sex relationships, mediation, and family violence.

“I really like the human element of Family Law,” she says.

A former teacher, Ruth understands that her clients are often experiencing a very challenging and distressing period of their lives when they seek legal advice and assistance and provides them with support and straightforward advice every step of the way.

“Because Family Law is such a personal area of law, what’s a good fit for one client may not be the right fit for the other,” Ruth says.

“We hear the most sensitive information about clients’ lives. You become a confidante.”

When it comes to Family Law, Ruth says having a lawyer who has a comprehensive understanding of the process, your entitlements and the required level of support is imperative to attaining a successful outcome.

Ruth works with clients to decide the best course of action based on their individual circumstances and to alleviate stress and apprehension during what is already an emotionally challenging time.

Ruth quickly develops a comprehensive insight into her client’s individual needs and is committed to resolving her client’s Family Law matter at the earliest opportunity.

“It’s definitely my approach to try and resolve disputes,” she says.

“A conciliatory approach is my preference where possible . . . to try and calm things down rather than inflame things.

“Obviously you have to be a strong advocate for your client, whether things are amicable or not, but if possible, we’re not trying to blow things out. We’re trying to resolve things amicably so the client can get on with their lives.”

Where litigation is necessary, Ruth is a highly experienced and confident advocate who guides her clients through the Court process one step at a time.

“Families who have to be involved with the Family Court system are generally in a state of crisis and for them to get to that stage, where they need a judicial determination of their arrangements for their children or property as well, they’re there because nothing else has worked for them,” Ruth says.

“I don’t think anybody races into the Family Law Court system if they don’t absolutely have to.”

Born and bred in Victoria, Ruth lived and worked near Geelong, on the Surf Coast, and in the NSW coastal town of Port Macquarie before joining CJM and settling on the Tweed Coast in August 2020.

Admitted to practice in 2006, Ruth has focused exclusively on Family Law since 2007. She obtained accreditation in Family Law in 2011 and is also a highly experienced Independent Children’s Lawyer.

Ruth holds a Bachelor of Law (Honours) from Monash University, a Bachelor of Teaching (Honours) and a Bachelor of Arts from the University of Melbourne.

“I’ve worked for Legal Aid in NSW and I’ve worked for Legal Aid in Victoria and I’ve also worked in private practice in Victoria and now private practice again here, which crosses NSW and Queensland, where many of our clients are,” she says.

CJM Lawyers’ Tweed Shire office employs solicitors and conveyancers locals know and trust, including long-term members of the Tweed area, all of whom share a strong community focus.

In her spare time, Ruth enjoys beach walks with her two Staffordshire Terriers, wandering through local markets and sipping champagne at the races.

“I live and work here,” she says. “This is my community. I’m thrilled to be working in this community.”

Why obtaining legal advice is important

Wed, 15 Apr 2020 07:49:46 GMT

You may run into unexpected challenges, misfortune or milestones over the course of your life and the reassurance and advice of a qualified professional is just what your need to help get you back on your feet. In overwhelming situations, a solicitor’s advice cannot only help to alleviate the pressure but help to protect your rights and get the best possible outcome.

Here are a few reasons why you should look to obtain legal advice:

Makes the process easier

Facing a legal issue on your own can be tough and exhausting, having a solicitor by your side can help lift a weight off your shoulders. It goes without saying that you want the best possible outcome and we’re here to help steer you in the right direction and stop you from making uninformed decisions. A solicitor will clearly explain what your options are, give you advice and explain the best path that suits your individual needs. They will also help you to understand the next steps you should take, making the process a lot easier for the parties involved.

Know your rights

Your legal rights are what empowers you and it is extremely important to protect them. A solicitor will ensure you are aware of your rights as well as understand them. You may even find that your rights are being imposed upon by others and having a legal professional on your side can make all the difference. To find out what laws relate to your situation you should book a consultation with our team at CJM lawyers.

Documents are handled correctly & are legally binding
It is of extreme importance that all legal documents are handled correctly and are legally binding. Legally binding is a common legal phrase that indicates that an accurate discussion and agreement has been made, and certain actions and terms are now required. If either of the parties do not obey these terms, it may result in legal consequences. If a document is not handled correctly and legally binding, it is considered invalid and therefore not forceable.
The importance of good legal advice is often understated. We are here to ensure you get the best possible outcome and are a guiding hand to help get you through the situation. Before navigating a lawsuit, dealing with bankruptcy, trying to resolve a dispute, starting a business or filing any type of family law application you should unquestionably obtain legal advice.

Having our team at CJM Lawyers on your side will make a difference. Don’t hesitate to get in touch now as we also offer a free consultation.

Can I Sue for Defamation?

Tue, 17 Mar 2020 23:43:25 GMT

If someone has made a statement to a third party, which makes them think less of you or has exposed you to ill feeling or ridicule, you may be able to bring an action for defamation.

Defamation is becoming an increasing problem in the age of social media and online communications. Not only do online forums have the capacity to publish defamatory comments to a potentially larger audience, but they tend to create a false sense of security giving users the boldness to post things that they would not otherwise say.

When can I take legal action against someone for defamation?

In short, to establish defamation you need to be able to prove 3 things:

1. that someone communicated information to at least one other person;

2. that the communication clearly identified you; and

3. that it makes others think less of you, tarnishes your reputation or exposes you to hatred, ill feeling or ridicule.

In the online environment, this means that both the person who posted a defamatory comment, and the administrator or moderator of the page on whom the comment was posted, can be held liable for defamation.

In certain cases, depending in the circumstances and the nature of the publication, a person may be able to defend your claim. For example, where the defamatory statement is made in the course of court proceedings, the defence of ‘absolute privilege’ will protect the person who made the statement.

What should I do if someone has defamed me?

1. The first steps you should take if you believe someone has defamed you is to obtain and preserve evidence of the publication. For online publications, this may involve printing or screenshotting the relevant post. If it was verbal, obtain a signed statutory declaration from the person to whom it was communicated. If it was published in a newspaper or magazine, keep an original copy.

2. Ensure that you record the time and date of the publication, and the context in which it was made.

3. Collect records and evidence of any damage you have suffered to your personal or professional reputation and any financial losses that you have incurred.

4. Seek legal advice. An experienced defamation lawyer will be able to tell you whether your action is worth pursuing (having regard to any applicable defences) and help you to decide what remedies to seek and the most cost-efficient means of obtaining them.

If you believe you have been defamed by someone, talk to Ashley or Stacey about how we can help to restore your reputation and obtain the appropriate compensation.

Where there's a WILL there's a way

Sun, 19 May 2019 23:33:50 GMT

Estate planning is often a matter that people delay thinking about because one’s own death is a topic that sits unpleasantly and uneasily with most.

The reality is that you want to make sure your wishes are followed and your family are provided for. The best way to do this is by having a valid Will. A valid Will is a document that, if executed according to law, is a legally accepted declaration of how you would like your estate dealt with upon your death.

We’ve found that the majority of our clients are unaware of the damage that can be caused by not having a legally prepared Will. We often see people who do not believe they require a Will because their estate assets are relatively small or they choose to prepare a Will on their own to save time and expense.

Should you die without having a valid Will in place, you are said to have died “intestate”. Although you may have intended for your assets to be distributed in a particular way, because you have not created a valid Will, the rules of intestacy under the appropriate state legislation will decide how your estate is distributed.

If you have a Will but it’s been prepared incorrectly or it’s not worded clearly, then family members may disagree as to what they’re entitled to. In this instance, the Court has to get involved to make a determination when there is uncertainty as to your wishes. This can end up costingy our family time and money and is often a stressful process for all.

As an example, Mary and Paul were married with a daughter, Sally. Due to family disagreements, Sally was not in contact or on speaking terms with her parents for many years. When Paul passed away without a will, his assets were distributed by the rules of intestacy in the Succession Act 1981 . The formula for the distribution of Paul's estate by the rules of intestacy meant that Sally received a portion of the estate even though Mary insisted that this was not what Paul would have wanted.

If Paul had made a Will naming his wife as the only beneficiary of his estate—hecould have avoided this additional stress on Mary.

CJM Lawyers take pride in dealing with matters with the highest level of professionalism, respect and sensitivity. Contact us today so we can assist you with the creation of a Will so you can ensure that the distribution of your assets, investments and family heirlooms are reflective of your wishes. If younger children are involved, your will can also address their care arrangements and provide for their future needs. We can assist you through this process and provide you and your loved ones with peace of mind.

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