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When is it okay to record and publish private conversations?

June 30th, 2017

Recently, the popular press has been broadcasting secret recordings made by a former One Nation insider.  The Federal Opposition has used the recordings to call for a police investigation.  For her part, Senator Pauline Hanson has sought an injunction, preventing the release of any further recordings into the public domain.

The ability to record and/or publish private conversations in Queensland is governed by the Invasion of Privacy Act 1971 (“Act”).

When it comes to recording private conversations, it is an offence to use a listening device (other than a hearing aid) to overhear, record, monitor or listen to a private conversation.  There are a number of exceptions.  Most importantly, where the party recording the conversation is a party to the conversation.  Other exceptions include where the party unintentionally hears the private conversation on a telephone or where the party is an employee of the Commonwealth or a police officer in certain circumstances, such as the execution of a warrant.

Not surprisingly, the Act goes on to provide that a person is also guilty of an offence if they communicate or publish a report of, the substance of, meaning or purported meaning of a private conversation that has come to his or her knowledge as a result of the unlawful use of a listening device.  The maximum penalty for breach of this section is two years imprisonment.

If however you have lawfully recorded a private conversation, for example where you were a party to it, can you communicate or publish the details of that conversation to others?  The Act provides that it is an offence to communicate or publish any record of the conversation made, as well as any statement prepared from that record, to any other person.  Again, there are exceptions to this, such as:

  1. where the communication or publication is made to another party to the original conversation or with the express or implied consent of all other parties to the conversation;
  2. when it is made during the course of legal proceedings; and
  3. where the publication is not more than is reasonably necessary in the public interest, in the performance of a duty of the publisher or for the protection of the lawful interests of that person.

It is important to note that these comments relate to conversations in person.  The recording of telephone communications is strictly prohibited by the provision of the Telecommunications (Interceptions and Access) Act (Cth).

For advice in relation to your personal circumstances, please do not hesitate to contact our Senior Associate, Melanie Husband on 07 4036 9700.

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Conveyancing Update: Changes to CGT Withholding Regime

June 27th, 2017

Last year, with effect from 1 July 2016, the foreign resident capital gain withholding tax came into effect following amendments to the law regarding Capital Gains Tax (“CGT”).  The changes to the CGT laws required that sellers of land in Australia (or mining, quarrying or prospecting rights) withhold 10% of the purchase price in contracts worth over $2 million and remit that amount to the ATO.

The introduction of this regime was designed to assist with collection of CGT from foreign residents but in practice affected all contracts over the threshold amount.

Last month, the government announced further changes to this regime:

  • increasing the withholding rate from 10% to 12%; and
  • decreasing the withholding threshold from $2 million to $750,000.00.

These changes come into effect from 1 July 2017 and will affect contracts entered into on or after this date.

While the withholding requirements apply to foreign residents, sellers of all property over $750,000.00 will now be affected by the withholding requirements.

For sellers that are not foreign residents, in transactions of over $750,000.00, prior to settlement you will need to obtain a clearance certificate from the ATO.  If one is not provided, the purchaser will be required to retain 12% of the purchase price and remit this amount to the ATO.  The significantly lower threshold will also mean that many residential property sales will now be affected.

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How to conduct yourself during a separation to get the best result

June 20th, 2017

Six top tips from nearly a decade in family law

Julie Hodge – Senior Associate

Having worked in family law for nearly a decade now, I have been reflecting on the enormous number of variables that affect the outcome of a family law settlement, and those that the client can control.  The major thing ten years in family law has shown me is that how separated parties conduct themselves upon separation can be critical to getting the best result, remaining amicable and avoiding unnecessary court action.

So here are my six top tips on how to conduct yourself during a separation to get the best result (and remain on good terms with your former partner).

Appreciate that the relationship has now changed and adapt your behaviour accordingly

Whilst texting each other ten times a day may have been normal during the relationship, it may not be upon separation.  Watch out for and appreciate new boundaries that are put in place by your former partner.

Excessive texting or telephoning your former partner after separation can amount to domestic violence or stalking and lead to a (domestic violence) protection order being sought against you, or even criminal charges being laid.

Don’t do any Facebook posts about your separation

Aside from possibly causing tension or miscommunications with your former partner, and complicating or derailing any settlement, these posts could end up in an affidavit before the Family Law Courts.  I have seen Judges on many, many occasions reading a party’s Facebook post to the Court (which is open to the public) and challenging them on the content and appropriateness of the posts.  Orders are often made by Judges restraining or injuncting parties from posting information on Facebook about their children or a settlement.

On an even more serious note, publishing certain information about court proceedings is an offence which can result in serious penalties, and evidence in Facebook posts can be critical to winning or losing a family law case.

Try to keep the communication lines open with your former partner

Continuing to communicate with your former partner one-on-one in a mode you both feel comfortable with; be it via email, or phone, or over coffee, can not only assist to keep your relationship amicable, but can also aid your legal separation.  For example, at times your solicitor may suggest you discuss certain settlement issues direct with your former partner.  Such open discussion not only saves time and legal costs, but may also allow you to overcome an impasse in the settlement.  Common impasses can include who is to have the children on Christmas Day or whether to sell the family home and when.  This may not be appropriate if there is a history of domestic violence.

Get the support you need

Separation is one of the most traumatic life events.  It is strongly recommended that you not only have a few close friends or family members to talk to in confidence, but that you also speak to a counsellor or psychologist at the time of separation.  Some people feel they only need one or two counselling sessions, while others require support over a longer period of time, particularly in the circumstances of a traumatic separation, or litigation.

Don’t rush in and freeze joint banks accounts, withdraw funds from bank accounts or change the locks

Taking serious steps such as freezing joint bank accounts, withdrawing funds from bank accounts or changing the locks on the house may be necessary in some circumstances, however in most, it is not, and just antagonises the situation and causes more legal issues and complications.

Except in circumstances of urgency, you should obtain legal advice from a family law solicitor before taking any of these steps.

Obtain legal advice from an experienced family law solicitor

Obtaining legal advice, and if necessary, representation, at the early stages of separation, or even in the event you are considering a separation, is critical.  Knowledge really is key at the initial stages of a separation. The more informed you are the better you are able to make decisions about the separation and your future, and conduct yourself in a way that is consistent with your goals.

What most separating parties don’t know is that a solicitor can be retained by you to do as little (such as providing advice only), or as much, as you need them to do.  Nothing makes me happier than to have someone walk into my office and tell me that they have agreed on a settlement with their former partner and need me to “make it legal.”

A good family law solicitor will let you know during the process of any options you can take to reduce costs, such as preparing a written chronology, rather than the solicitor taking a full statement from you over many hours, or initially attending mediation without solicitors at a mediation service.

If you would like any further information about the matters raised in this article or you need family law advice please feel free to contact me.

Julie Hodge
Senior Associate
Miller Harris Lawyers

Telephone:  07 4036 9700
Email:  juliehodge@millerharris.com.au

Voted into 2016 and 2017 Doyles list of leading Family and Divorce Lawyers

 

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World Elder Abuse Awareness Day

June 15th, 2017

In the 2016 financial year, the Elder Abuse Prevention Unit estimated that just over $280 million dollars had been misappropriated by 89 attorneys.  The available evidence suggests that most elder abuse occurs within the family and is intergenerational, with mothers most often being the subject of abuse by sons, although abuse by daughters is also common, and fathers are victims too.

Today is World Elder Abuse Awareness Day (WEAAD); day to raise awareness and support for those victims suffering from abuse.

Our wills and estate solicitor, Bianca Stafford feels strongly about the growing trend of elder abuse in the community, and believes that community awareness and education is key in helping detect and prevent elder abuse.

Elder abuse takes many forms (i.e. financial, emotional and physical abuse). The most common form of elder abuse we see as lawyers, is financial abuse, which may include an attorney misusing their powers under an enduring power of attorney, by taking or using money or property improperly.

If you are concerned that you may be, or know a victim of, elder abuse you can discuss this with your doctor or solicitor, or alternatively you may call the Elder Abuse Helpline on 1300 651 192.

If you would like more information about elder abuse you can find factsheets on the Queensland Government website, or alternatively by contacting our wills and estates solicitor Bianca Stafford on 40369 700 or by email biancastafford@millerharris.com.au.

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Agent suffers $1.6M judgment for misrepresentation

June 15th, 2017

In a decision handed down just a few weeks ago, a real estate agent has been ordered by the Supreme Court to pay the sum of $1,640,252.00 after a finding of misrepresentation in connection with the sale of a shopping centre.

The purchaser of the shopping centre made a claim against two defendants; firstly the property manager of the centre (“manager”) and secondly the real estate agent (“agent”).  The claim was that the defendants had misrepresented the financial performance of the centre, and therefore how much it was worth.

The decision considers and builds on existing authority including:

  • the decisions of Yorke v Lucas where it was held that an agent is not liable for misleading or deceptive conduct where they are merely passing on information from vendor to purchaser without actually endorsing the information; and
  • the decision in Butcher v Lachlan Elder Realty, where it was held that inaccurate information contained in an agent’s brochure did not mislead the purchaser.  In that case, the brochure contained a disclaimer that the information contained within it was not guaranteed to be accurate and that interested persons should make their own enquiries. The purchaser had engaged professional advisers.

Misrepresentation

The court made a finding that the agent had made misrepresentations to the purchaser by:

  • preparing an information memorandum which stated that the total nett rent received in the year ending 2009 was $607,175.04 per annum (where the actual amount was $297,896.00);
  • stating that nett rent had risen due to annual rent review to $619,630.00;
  • stating that the total outgoings for the centre were $106,140.00 and that, apart from land tax, all outgoings were recovered from or billed to the tenants (total outgoings were actually $190,000.00 and not all were recovered from tenants); and
  • stating that the centre would yield a return on investment between 8% and 10%.

The reality of the situation was that the centre had performed poorly since it had been opened, and this was not disclosed in the memorandum.

The court found that the representation was made by the agent, and was not simply the agent passing information from the manager to the purchaser, without any belief in its truth or falsity. The court emphasised that:

  • the information memorandum stated on the front page that it was prepared by the agent and displayed the agent’s banner, address and contact details;
  • the logo of the agent was also present on each page of the memorandum.  This had the effect that the agent was putting the information forward as its own;
  • even though one of the documents disclosed was branded with the manager’s logo, the fact that the document also bore the logo of the agent constituted an endorsement of the information prepared by the manager; and
  • by assisting the purchaser to calculate a purchase price based on the rental figures in the memorandum, this constituted an endorsement by the agent that this figure was accurate. The agent calculated the purchase price of $6.9 million based on the nett rental income of $619,630.0. The actual value of the centre, as determined by a valuer at trial, was $4.94 million.

The court determined that this information was relied upon by the purchaser and that, had the representations not been made, the purchaser would not have agreed to purchase the centre. Despite commenting that the purchaser had been naïve and overly trusting, the court found that it was the misrepresentation which was the direct cause of the loss suffered by the purchaser.

It should be noted that the misrepresentation claim against the manager failed because the agent had only disclosed part of the report and not the entire report prepared by the manager.  The court made a finding that, had the entire report been disclosed to the purchaser, it would not have been misleading. Instead, it was the use of part of the report by the agent which was misleading.

Use of a disclaimer by the agent

A finding of misrepresentation was made despite the fact that the memorandum contained a disclaimer to the effect that the agent had not verified the information, was merely passing it on, and that the purchaser should not rely on the information, but should satisfy themselves as to any conclusions.  The court considered that this disclaimer, contained at the end of page 38 of a 39 page document, was not sufficient to warn the purchaser that the information contained within should not be relied on as being accurate. This case was distinguished from the decision in Butcher where the disclaimer was reasonably prominent on each page of the two page brochure, such that it effectively warned persons reading the brochure that they should make their own enquiries. The court also considered that the agency branding on the documents, and the oral endorsement by the agent of the information, was inconsistent with the disclosure statement.

Defence of contributory negligence

The agent raised a defence, which ultimately failed, of contributory negligence on behalf of the purchaser who did not conduct due diligence in relation to the purchase. The defence failed on a technical point because the defendant had not shown that any further enquiries made by the purchaser would have made a difference.

Lessons to be learned

This case should serve as a caution to agents about rebranding and distributing information that has been supplied to them by a third party, including reputable managing organisations.  Agents should also consider whether any disclaimer notice contained within documents is sufficiently prominent to effectively alert a reasonable person that the information within the document is simply being passed on, and has not been verified. Agents should be careful not to endorse or adopt the information of third parties orally or through emails.

Decision: Makings Custodian Pty Ltd v CBRE Pty Ltd [2017] QSC 80.

For further information, please contact:

Nigel Hales
Accredited Specialist – Property Law
Partner, Miller Harris Lawyers

Email:  nigelhales@millerharris.com.au
Direct Phone:  (07) 4036 9731

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Sunday penalty rate changes as of 1 July 2017

June 13th, 2017

Earlier this year, the Full Bench of the Fair Work Commission made a decision to reduce public holiday and Sunday penalty rates.  The reduction to the Sunday penalty rates will be introduced gradually over the next 4 years.

Summarised below are the changes that will take effect as of 1 July 2017:

Retail  award


Changes  to  Sunday  rates:
Full-time  and  part-time  employees

Casual employees

Change  from  200%  to 195%

Change  from  200%  to  195%

Changes  to  public  holiday  rates:
Full-time  and  part-time  employees

Casual  employees

Change  from  250%  to  225%

Change  from  275/250%  to  250%

 

Hospitality  award 


Changes  to  Sunday  rates:
Full-time  and  part-time  employeesChange  from  175%  to  170%
Changes  to  public  holiday  rates:
Full-time  and  part-time  employees

Casual  employees

Change  from  250%  to  225%

Change  from  275%  to 250%

 

Fast food award 


Changes  to  Sunday  rates:

Level  1  full-time  and  part-time  employees

Casual  employees 

Change  from  150%  to  145%

Change  from  175%  to  170%

Changes  to  public  holiday  rates:
Full-time  and  part-time  employees

Casual  employees

Change  from  250%  to 225%

Change  from  275%  to 250%

 

Restaurant award


Changes to Sunday rates No changes
Changes to public holiday rates:
Full-time  and  part-time  employees

No change to casual employees

Change  from  250%  to 225%

 

 

Pharmacy award


Changes to Sunday rates:

Only affects employees working between 7:00 am  and  9:00 pm

Full-time  and  part-time  employees

Casual employees 

Change  from  200%  to  195%

Change  from  225%  to 220%

Changes to public holiday rates:
Full-time  and  part-time  employees

Casual  employees

Change  from  250%  to 225%

Change  from  275%  to 250%

 

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Debt Collection

June 8th, 2017

Does someone owe you money? If so, you may be wondering how you can recover that debt.

As a general rule, the time limit for commencing proceedings to recover debt is six years from the last payment, however this may vary depending on the nature of the debt owed. In any case, prompt action is optimal, especially where the person who owes you money may become a bankrupt, or the company becomes insolvent. The first step in debt recovery is contacting the person who is indebted to you to try and reach an agreement for payment. If this does not resolve the matter, then you may need to take a more formal step toward recovery.

Letter demanding payment

If negotiations fail you can write a ‘letter of demand’. A letter of demand should include proof of the debt claimed, including how the debt came into existence. It should reference the date the debt was incurred and any agreements that were in writing. The letter should also mention any invoice or quote that relates to the debt. The letter should stipulate the method available for payment, and the time within which payment is to be received. You may also wish to state that if payment is not received within this time, that legal proceedings will be commenced.

It is important that the letter of demand is sent via registered post, requiring a signed postal receipt.

When clients seek our assistance in relation to the recovery of debt, we provide initial advice on the prospects of being able to recover the debt, as well as the legal basis for claiming the debt. We will then prepare and serve a letter of demand. Many cases are resolved within this initial process and it is a relatively cost-efficient means of recovering outstanding debts.

Issuing a letter of demand may also result in the reaching of agreement in relation to a payment plan. This is a positive outcome where the debtor has limited finances, but is willing to repay the debt. Where a repayment agreement is reached, it is important to have the agreement documented in writing. We can assist you to formalise repayment agreements so that they are enforceable if not complied with.

Commencing legal proceedings

If your claim is still unresolved after the abovementioned steps have been taken, it may be necessary, as a last resort, to commence legal proceedings. If you find yourself in this situation, we are able to provide advice on the prospects of recovery and the likely costs associated with litigation. We can then commence and manage those proceedings.

Prevention

It is said that prevention is better than a cure. There are some steps you can take to prevent bad debtors. For instance, you may conduct background checks on the business or persons who you seek to do business with. You may place limits on the amount of credit that you advance. Invoice more frequently. Keep in contact with customers and seek further information if a payment is late or missed.

It is always prudent to document any agreements that you make in writing.

Our commercial team can provide individual advice as to methods available to better protect your business, including reviewing contracts and terms and conditions of trade.

For more information, contact our commercial team on 07 4036 9700.

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Landlord and lessee obligations in respect of asbestos

June 6th, 2017

Any person with management or control of a workplace or any person who conducts a business or undertaking at a workplace should consider whether they are complying with the requirements of the Work Health and Safety Act 2011 and the Work Health and Safety Regulations 2011 with respect to asbestos.

Obligations include:

  • Taking steps to identify asbestos through an investigation of buildings that were constructed before 31 December 2003 by a competent person.  Note that if any part of the premises is not accessible or any material cannot be identified, then you need to assume that it contains asbestos.  You should retain a copy of the report created by the competent person.
  • If you own or manage a building that was constructed after 31 December 2003, you will still need to comply with the Act and Regulations if asbestos has been identified in your building, or you have grounds to believe that it may be present in your building.
  • You must then maintain and distribute a register and a management plan:
    • even if your building, constructed before 31 December 2003, does not contain any asbestos, you must still keep a register which records this;
    • you must provide a copy of the register and report to any potential lessees of commercial property before they execute the lease;
    • you should make clear under the management plan (and also under your lease agreement) who is responsible for any work that is to be performed in future;
    • any contractors working within your building must be provided a copy of the register, report and plan.  Any person conducting the work (even if the person is not instructed by the owner) must comply with the management plan; and
    • failure to comply with these obligations may lead to huge penalties for both individuals and companies.  Further, you may also be liable in negligence for any exposure or harm caused to others by the presence of asbestos in your building.

If you are contemplating demolition, refurbishment or any other type of work to your building, you should consult the register and management plan, and make sure that you engage a licensed asbestos remover prior to the work.  A licensed remover will be able to assist you to ensure that you comply with the multitude of regulations that apply to the removal of asbestos (which includes air and health monitoring, a removal control plan, decontamination sites, notification to Workplace Health and Safety Queensland and more).

Under the Building Act 1975, if your building was certified on or after 1 July 1997, then you must clearly display at the main entrance to the building a certificate of classification.

If your premises have been identified as containing asbestos then you may also need to register this on the contaminated land register.  If your land is placed on the register then you must notify all current and prospective tenants of the registration. Failure to disclose this information may result in the termination of any leases, and fines.

We recommend that any person who owns commercial premises that they lease, or any tenant who conducts a business or undertaking, review whether the building was constructed before 31 December 2003.  If you discover that the building was constructed prior to this date, you should take steps to ensure that any area containing asbestos is clearly labelled, a register is created and distributed, along with a management plan.  You may also want to consider whether there should be any special terms contained in your lease agreement in relation to the responsibility for the removal of asbestos into the future.

For more information, please contact us on 4036 9700.

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