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News

Miller Harris Lawyers wins Queensland Law Society Equity and Diversity Award for the second year in a row

May 24th, 2017

Miller Harris Lawyers, one of the leading law firms in North Queensland, has won the Queensland Law Society (QLS)’s Equity and Diversity Award for 2017 in the Small Legal Practice Category (legal practices with 20 or fewer legal practitioners).  This is the second year in a row that Miller Harris Lawyers has won the award.  Nominations came from throughout Queensland and were judged across four main criteria:

  • Promotion of diversity within the law profession
  • Equity initiatives
  • Policies supporting equal opportunity
  • Flexible work practices

“We’re delighted to win the award again in 2017.” Partner Melissa Nielsen said.  “To top the state in this award category is something we are extremely proud of.  It recognises the variety of initiatives we have put in place to support equity and diversity within our workplace.  The diversity of thought and opinion that comes from employing people from a range of different backgrounds is a key strength of our business and provides us with a competitive edge.  We are also conscious of the evolution of our workplace over time.  More and more people are seeking flexible working arrangements and as an employer, we have adapted our policies to provide this flexibility to ensure we attract and retain high calibre people.  Of our team of over 30 people, 42% are currently employed on flexible working arrangements.  It’s a two way street.  Our team certainly go the extra mile when needed and we’re flexible in return.  Unfortunately it is not possible to accommodate every request, but being open minded to innovative and practical ideas from our staff has certainly contributed to staff retention and happiness in our workplace”  Melissa went onto say.  “I personally have benefited from the firm’s flexible working arrangements through a flexible return to work following parental leave on a number of occasions.  This flexibility has enabled me to appropriately balance my continued career progression with the commitments associated with raising a young family.  All three of our senior associates are also currently employed on flexible working arrangements whilst caring for young families.”

Miller Harris Lawyers has operated successfully in North Queensland for over 25 years providing a wide range of business and personal legal services to corporates, government agencies, not for profit organisations, businesses and individuals.

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Compulsory Farm Debt Mediation arrives in Queensland

May 23rd, 2017

From 1 July 2017, it will be compulsory for lenders to offer to mediate with farmers, before taking enforcement action under a farm mortgage, under the Farm Business Debt Mediation Act 2017 (“Act”) passed on 30 March 2017.

‘Enforcement action’ means taking possession of a property, exercising a power of sale, or issuing a statutory enforcement notice.

A lender will first need to serve an ‘Enforcement Action Notice’, which notifies the farmer:

  1. of the lender’s intention to take enforcement action; and
  2. that the farmer may request mediation.

After receiving the Enforcement Action Notice, the farmer has 20 days to request a mediation.  A new business unit of the QRAA (which will be renamed the Queensland Rural and Industry Development Authority from 1 July 2017) will receive copies of the Enforcement Action Notice and any mediation request, will oversee the mediation process and will be responsible for accrediting mediators for farm debt mediations.

A farmer who has not or not yet received an Enforcement Action Notice may also request mediation.  In that instance it is only compulsory for a lender to participate if the farmer is in default of its mortgage.

The Act does not apply if the farmer is bankrupt, has received a creditors’ petition, or is an externally administered company.  The Act does not expressly prohibit the appointment of a receiver to farm property under a general security agreement; although that is unlikely to be ‘in the spirit’ of the legislation.

The Act will have a broad application.  A ‘farm business debt’ is an amount owed by a farmer that:

  1. was borrowed for the purpose of conducting a farming business; and
  2. is secured by a farm mortgage.

The Act contains no guidance about how ‘loan purpose’ is to be ascertained.

A ‘farmer’ is a person or corporation whose sole or main business is a farming business, or who is the owner of land under a sharefarming agreement.

A ‘farming business’ has a wide definition and includes agriculture, horticulture, dairy farming, bee‑keeping, land‑based aqua‑culture, poultry, or another business involving cultivating soil, gathering crops, or rearing livestock.  A business that involves cutting timber is also a ‘farming business’.

A farm mortgage is a mortgage over farm property, which importantly includes:

  1. land used for the farming business;
  2. a water allocation held for the farming business; or
  3. a vehicle, machine, or tool usually used to carry on a farming business such as a tractor, milking machine, harvester or beehive.

Penalties apply to lenders who commence enforcement action without the necessary ‘exemption certificate’; which will be issued by the QRAA either when a satisfactory mediation has taken place, or three months have elapsed since an enforcement action notice has been issued, the lender has attempted to mediate in good faith during that time, but no satisfactory mediation has taken place.

Farmers are entitled to have one or more advisors at mediation, and the advisor may (but does not need to be) a lawyer or otherwise professionally qualified.

The new laws bring Queensland into line with New South Wales, which has had a compulsory farm debt mediation process since 1994; and Victoria which introduced a system in 2011.  The system replaces the voluntary scheme which was operated under the Queensland Farm Finance Strategy.

The broad definitions of ‘farmer’, ‘farm mortgage’ and ‘farming business’ means the Act may have a wide reach for Far North Queenslanders.  If parties are well‑prepared, well‑informed and well‑advised when they enter mediation, the new compulsory process is likely to achieve positive results, and opportunities which may not be available through standard enforcement action.

For more information about this issue and all commercial litigation and debt resolution matters please contact our Senior Associate, Rowan Wilson on 07 4036 9700.

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The 2017 budget seeks to address the overburdened family law system

May 16th, 2017

The government has allocated tens of millions of dollars in the 2017 budget to try to address the over-burdened family law system.

Budget measures include:

  • a comprehensive review of the family law system by the Australian Law Reform Commission;
  • a desperately needed boost to funding of Community Legal Centres and Aboriginal and Torres Strait Islander Legal Services, to a total of $55.7 million;
  • $10.7 million to fund additional Family Law Consultants in the Family Law Courts, who are qualified social workers and psychologists who assist the Courts in dealing with children’s cases;
  • a $12.7 million initiative – parenting management hearings – to try to resolve family law disputes between self-represented litigants through an informal, non-adversarial forum;
  • $3.4 million to fund six additional specialist domestic violence units to be set up in Legal Centres to deliver legal and social support to women at risk of, or experiencing family violence; and
  • consultation, which will soon commence, regarding amendments to the Family Law Act 1975 in relation to family violence.

If you would like any further information on how the 2017 budget measures might affect you, or someone you know, or would like advice as to any family law issue, please feel free to contact me.

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What happens when a tenant is in breach of a lease agreement?

May 5th, 2017

Where a tenant or lessee is in breach of their obligations under a lease, section 124 of the Property Law Act 1974 requires the landlord or lessor to issue to the tenant a ‘notice to remedy breach’ before exercising any right to terminate the lease.

To be effective the notice to remedy breach must:

  • be in writing;
  • be served on the tenant;
  • specify the nature of the ‘particular breach complained of’;
  • specify how the breach can be remedied;
  • if the landlord is alleging that the tenant owes money in compensation for the cost of issuing the notice this should also be specified in the notice; and
  • if the landlord is also claiming amounts for arrears in rent, this should also be clearly specified.

The landlord must give the tenant a reasonable time to comply with the notice to remedy breach before exercising any right of early termination under the lease agreement.  What is considered reasonable time will depend on the circumstances of the particular case, including the nature of the breach and what is required to remedy the breach.  The specification of a certain number of days does not mean that the time given is reasonable.

A recent decision of the Supreme Court, Tyrrell v Jesbro Enterprise Pty Ltd [2017] QSC 55 has reiterated the importance of issuing an effective notice to remedy breach to tenants.  In this case the tenant had failed to pay rent and council rates, the tenant was subsequently issued with a notice to remedy breach and when the tenant did not comply with the notice the landlord terminated the lease early.

When the matter came before the court, Justice McMeekin refused to declare that the lease had been validly terminated by the landlord because the notice did not include at the end of the notice the note which appears on the approved form, which is:

“NOTE: The lessor will be entitled to re‑enter or forfeit the lease in the event of the lessee failing to comply with this notice within a reasonable time.”

The court held that the notice was therefore defective and that there was not substantial compliance with the approved form.  Critical to the decision was that the letter only stated that the tenant may be liable to forfeiture and termination, not that the landlord would have a right to re‑enter and terminate if there was no compliance within a reasonable time.  The positioning of this note at the end of the notice and the reference to section 124 of the Property Law Act 1974 was also considered essential to bring to the tenant’s attention the serious consequences of non‑compliance.

If you are a landlord and require assistance with a breach of a lease by a tenant or you are a tenant who has been issued with a notice to remedy breach, our experienced property law team based in Cairns can assist you to comply with the technical procedures required to protect your interests.

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What you need to know when buying your first property

May 3rd, 2017

The purchase of property is one of the biggest financial decisions that we make in our lifetime.  Many people find the conveyancing process quite daunting or time consuming.  If you have purchased property within Cairns or surrounds, we would love to assist you with your conveyance.  At Miller Harris Lawyers we have an experienced property law team located in Cairns, who can work with you throughout the conveyancing process to ensure that your purchase is as stress free and smooth as possible.

Our top tip for purchasers of property is to engage an experienced property law solicitor before you sign the contract.  As conveyancing is usually a fixed fee service, it does not cost any extra to engage a lawyer from the beginning of the transaction.  By engaging a solicitor early, it enables you to receive advice on the terms of the contract and the critical dates prior to signing.  This reduces the risk of encountering surprises after you have signed the contract, and having to pay a penalty for terminating the contract.

Our second important tip is to take out insurance over the property at the time you sign the contract.  Under most standard form contacts, the risk of the property transfers to the purchaser the day after the contract is signed (not at settlement).

How our property law team assists you throughout the conveyancing process:

  • After we have given an initial letter of advice on the terms of the contract, we will keep you updated on each of the critical dates in relation to the conveyance such as:
    • when the cooling off period, which enables you to terminate the contract, expires;
    • what date you must obtain finance by; and
    • when to carry out building or pool inspections.
  • Carry out standard searches, and also recommend if you should undertake additional searches in relation to the property.
  • Calculate any stamp duty that you will be required to pay and any concessions that you are entitled to.
  • Complete, certify and lodge all documentation.
  • Review what is included in the purchase price.
  • Liaise with the seller’s solicitor, and your financial institution, to ensure that you know exactly how much money you need in order to complete the conveyance.
  • Book and attend settlement on your behalf.
  • Notify you as soon as you become the official owners of the property!

In addition to the above, our friendly and experienced property law team are available to answer any questions you may have about conveyancing.  Our property law team is led by Partner Nigel Hales, who is the only Queensland Law Society Accredited Specialist in property law in the Cairns area.  We have been operating within Cairns for over 25 years so we know Cairns, and we know the issues that impact our region.

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