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Rotary FNQ Field Days Update

May 24th, 2019

The largest field days in Northern Australia returns this year to the Mareeba Rodeo Grounds on 29, 30 and 31 May.

The Rotary FNQ Field Days is a biennial event running since the mid 1980’s and delivering the largest community event on the Tablelands.

A combined event of the Rotary Clubs of Atherton and Mareeba, the event raises funds for charities and local community organisations.

With a focus on Farm Safety, Innovation and Mental Wellness, not to mention the tractor pull, the event is not to be missed.

Be sure to visit the friendly team from Miller Harris Lawyers at the event, or drop into our new Mareeba branch in the meantime.

We look forward to seeing you there!

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The Great Wheelbarrow Race

May 13th, 2019

The annual Mareeba-Chillagoe Wheelbarrow Race is on this weekend.

Each year, competitors gather to run the 140 km along the Wheelbarrow Way from Mareeba through to Chillagoe, and this weekend will be no different.

Starting on Friday 17 May 2019 in Mareeba, individuals and teams in 12 different categories will set off on their journey with wheelbarrows in tow.

Last year, “The Fit Bucks” set the fastest ever time for the race at a cracking pace of 6 hours, 6 minutes and 12 seconds, which will set a tough challenge for competitors this year.

If you are looking to see the action, the event starts Mareeba with a parade down Byrnes Street, directly past the new Mareeba office of Miller Harris Lawyers.

The parade then proceeds to Vaughan Street, with the main event starting at 9.30 am.

If you are in the area, be sure to get along and support this unique and incredible local event.

Additional information can be found on the official website.

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Changing your child’s name after separation

April 30th, 2019

After separation, it is not uncommon for one spouse to change their name back to their maiden name as opposed to keeping their married name.  But what about changing a child’s name?

As family lawyers we are often asked about the process for legally applying to register a change of a child’s name.

Section 17 of the Births, Deaths and Marriages Registration Act 2003, provides that:

  1. the parents of a child may apply to the Registrar for registration of a change of the child’s name; and
  2. an application for registration of a change of a child’s name may be made by one parent if the applying parent is the only parent named in the registration of the child’s birth (on their birth certificate), or there is no other surviving parent, or a Magistrate approved the proposed change of name.

This essentially means that if both parents are registered on the child’s birth certificate they must agree to the name change.  If both parents do not agree, then the only way to register a name change is if an application is made to the court and the court makes an order for the name to be changed.

When considering whether or not a name change is in the child’s best interests, the court will have regard to, among other factors and the particular circumstances of the matter:[1]

  1. any embarrassment likely to be experienced if his or her name is different from the parent with residence or care and control;
  2. any confusion of identity which may arise if his or her name is changed or is not changed;
  3. the effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
  4. the effect of frequent or random changes of name;
  5. the contact that the non-custodial parent has had and is likely to have in the future with the child;
  6. the degree of identification which the child or children have with their non-custodial parent; and
  7. the degree of identification which the child or children have with the parent with whom they live.

This article focuses on the legal process to register a change in name.  A child’s name can be informally changed through use of a different name.  You should seek legal advice before informally changing your child’s name, especially if there are court orders already in place.

If an informal name change is made through use, the other parent can make an application to the court for the child to only be known by their legal name.

If you are wanting to change your child’s name we recommend that you first obtain legal advice.  Please do not hesitate to contact one of our experienced Cairns family lawyers today to discuss your matter.

[1] Reagan & Orton [2016] FamCA 330.

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Certificates of title – soon a thing of the past

April 16th, 2019

An exciting development in property law has been announced.  After much anticipation, the Queensland Government has now passed legislation which will mean that from 1 October 2019, original paper certificates of title (also known as title deeds) for property in Queensland will no longer have any legal effect.

The titles of property in Queensland have been maintained electronically for many years and the dispensation of paper certificates of title marks one of the final changes to fully electronic titling.  While older certificates of title can be retained for historical value, many a grey hair is likely to be avoided from the stress of trying to locate lost certificates after many years or explaining the inadvertent destruction of certificates.  Currently the process for dispensing with a paper certificate of title is a fairly arduous process involving extensive enquiries, advertising and declarations.

Prior to 1994, every property in Queensland had a paper certificate of title issued for it.  This certificate was required in order to deal with property, by sale, transfer, mortgage or otherwise.  However, from 1994 the Queensland Titles Registry converted to an electronic titles register and has not automatically issued paper titles for property since then.  A paper certificate could only be obtained on request and for a fee.

Where a paper certificate of title is issued, it must be produced when any dealings with the land are to be registered with the Queensland Titles Registry.  Without it, a dealing affecting land (where a paper certificate is issued) cannot register.  It is an important document, that by itself, evidences ownership of property.  As a result, lost or stolen certificates can (and historically have been) a huge concern for owners of property, particularly when trying to complete a sale of their property within the time frames of a standard conveyance.

More recently, the Titles Registry has been working to phase out the paper certificate of title.  When a certificate of title has been issued for a property and a dealing lodged for registration (such as a transfer of ownership which required the deposit of the original paper title), the original certificate would be destroyed and not reissued.

As a result many properties no longer have paper certificates issued today.

Please feel free to contact us on 07 4036 9700 if you have questions about how these changes will affect your property if you have a paper title for your property issued.  Miller Harris Lawyers would be happy to assist you with all your property law questions.

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Online business and retail shop leasing – is it a retail shop?

March 26th, 2019

If a tenant conducts an online retail business, but uses premises predominantly for producing or storing goods, is it a retail shop?  The Victorian Civil and Administrative Tribunal (“VCAT”) recently considered this question.

The Retail Shop Leases Act in Queensland and its equivalent across other states in Australia (“Retail Shop Legislation”) imposes additional tenant protections in leases of retail shop premises.  These additional protections do not apply to premises that are not considered retail shops under the legislation.  The concept of what is a retail shop is not always a straightforward determination to make, as illustrated in the decision of VCAT in Bulk Powders Pty Ltd v Seicon Pty Ltd (Building and Property).

Bulk Powders Pty Ltd v Seicon Pty Ltd (Building and Property) [2018] VCAT 2000

Bulk Powders Pty Ltd (the tenant) leased premises in an industrial area in Victoria where it developed and produced sports nutrition and supplement products.  While the tenant sold the items it produced as a retail business, the sales were mostly online, except in limited circumstances where some customers could collect products by appointment.  The tenant sought a declaration from VCAT that the premises was a retail shop.  The reason the tenant did this was that the lease included outgoings which would not be permitted to be recovered by the landlord if the premises were a retail shop.

The Retail Shop Legislation defines retail premises as premises that are “used wholly or predominantly for the sale or hire of goods by retail or the retail provision of services”.

Upon reviewing the law on this point, VCAT considered that to be retail premises, it was necessary that the premises have a retail characteristic of being open to the public, which in this instance, it was not.  The premises were used for predominantly production and storage of products and even though those products were sold online, that did not make the premises retail premises.

With so many businesses being conducted online today, this is an important clarification for both landlords and tenants about when the Retail Shop Legislation will apply to a leasing arrangement.  The consequences of the Retail Shop Leases Act applying to a lease are significant, for example, as illustrated in this case, the inability of the landlord to recover certain types of outgoings and charges.  There are also further disclosure obligations on the landlord that, if not complied with, can give the tenant extensive rights to terminate a lease.  This decision also goes to show that what does constitute a retail shop is not always a straightforward answer and there are a number of considerations in making a determination about this.

You can access the full decision of VCAT here.

Our team at Miller Harris Lawyers has extensive experience in commercial and retail leasing in Cairns and surrounding areas.  We would be happy to assist you with all of your leasing requirements.  Please contact our office on 07 4036 9700.

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Family Law Judges are not mediators, or are they?

March 7th, 2019

In another surprising development in the ever-changing landscape of Australian family law, Judges in the Federal Circuit Court of Australia can now act in certain cases, as mediators.  “Judicial Mediations” as they are called, are an entirely new service now being provided by Judges of the Federal Circuit Court of Australia; Judges who, it is well-documented, are already overburdened by huge case loads.

The rules surrounding Judicial Mediations are set out in Practice Direction No. 1 of 2019 which commenced on 1 January 2019 and is available on the Federal Circuit Court website.

A brief summary of the main rules of Judicial Mediations is as follows:

  • a party to a case before the Federal Circuit Court may make an oral or written application for Judicial Mediation;
  • the “docket Judge” who the parties ordinarily appear before, determines, according to certain criteria, whether the case is suitable for Judicial Mediation;
  • in considering whether a matter is suitable the docket Judge will consider a list of suitable matters provided for in the practice direction; however he or she may determine that another matter not provided for in that list is still suitable;
  • suitable matters include:
    • those where both parties are legally represented;
    • those where one or both parties are self-represented and the docket Judge determines the matter is suitable for judicial mediation;
    • property disputes;
    • parenting disputes where there is no  allegation of  serious risk and/or family violence;
    • appropriate child support matters;
    • compliance with orders for a prior unsuccessful private mediation; and
    • a risk that the costs and time of the trial will be disproportionate to the subject matter of the dispute;
  • it is expected that all mediation alternatives (including private mediation with a family dispute resolution practitioner) will be exhausted prior to a Judicial Mediation;
  • if ordered, a new Judge will be appointed as the Judicial Mediator so the case is not mediated by the docket Judge or the trial Judge (who is usually one and the same);
  • significant preparation is required for Judicial Mediation, similar to that required for a trial; and
  • all parties and any legal representatives must attend the Judicial Mediation.

How frequently Judicial Mediations are ordered and how effective they are, remains to be seen.  It is hoped that this new service will not significantly increase the already large case loads being handled by Federal Circuit Court Judges, and in the process increase waiting times being experienced in the courts.

For more information about Judicial Mediations or any other family law issues, feel free to contact Julie Hodge, family lawyer & Senior Associate on 07 4036 9706.

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What is SaaS? Software as a service and how to approach it with the right attitude

February 26th, 2019

With developments in technology, and especially cloud computing capabilities, more people are opting to use software as a service (“SaaS”) than ever before.

SaaS differs from traditional software programs.  Rather than installing a program on your computer or device, the software is accessed directly via the internet, usually by means of cloud software.  As a result, these arrangements often involve a subscription fee as opposed to a one off licensing fee.

While SaaS brings with it many benefits, it often involves complex arrangements and confusion as to who owns what intellectual property, and what each party’s obligations are.

These questions are normally resolved with a SaaS agreement. The SaaS agreement not only clarifies the responsibilities and rights of each party, but the written contract also helps to secure both parties’ interests into the future.

A well written SaaS agreement will usually cover the following items:

  1. the nature of the program/service;
  2. who owns the intellectual property, such as:
    • the software itself;
    • the data inputs; and
    • content generated by users;
  3. what happens if one party breaches the agreement;
  4. how the contract can be terminated;
  5. what happens to the data and software if the provider goes out of business;
  6. dispute resolution;
  7. the jurisdiction, or law that applies;
  8. what ongoing support and update services are available; and
  9. payment terms.

SaaS agreements are designed to  be comprehensive documents, and, like many contracts, they can end up being incredibly complex.  Given the broad range of topics an agreement needs to address, and the importance of those topics, it is crucial to ensure you have a properly drafted agreement.

As a consumer, you should ensure any agreement provided by a supplier suits your needs.  No matter how good the product is, if there is something fundamentally wrong with the contract, you will regret signing it.

As a provider, you should remember that SaaS agreements are not a one size fits all type agreement.  Consider what the software does, the business model used, and whether there are international laws that apply, particularly in relation to data and privacy.

A properly drafted agreement, prepared by a professional, can save both consumers and providers a great deal of stress in the long run.  If you would like to speak with someone about drafting or reviewing an agreement for you, please contact our experienced commercial law team on 07 4036 9700.

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A home buyer’s nightmare – property inspections failing to find fault

February 15th, 2019

A buyer is awarded only $500.00 for a building inspection report that missed extensive termite damage.

Building and pest inspection conditions are incredibly common in property contracts these days.  When purchasing a house or unit, it is always recommended that you engage a qualified inspector to look over the property for problems.  Building and pest inspection conditions generally allow a buyer to terminate the contract if significant problems are discovered with the buildings or improvements.

But what happens when major issues are not picked up in the building and pest inspection?

A recent decision of the Victorian Civil and Administrative Tribunal (“VCAT”) highlights the importance of reading the ‘fine print’ in building and pest inspection reports if you are purchasing a property.

Garrett v Elim House Pty Ltd [2018] VCAT 1862

The Garretts purchased a 100 year old timber house in 2014, for $172,000.00.  As part of the conveyancing process they engaged Elim House Pty Ltd (“Elim”) to conduct a pre-purchase inspection of the property.

After receiving the report, they decided to go ahead with the purchase.  Shortly after the sale was finalised, the Garretts discovered that there were significant structural issues with the house, including extensive termite damage.  Following the discovery of these issues, it was suggested by their builder that the house was beyond repair and should just be demolished and they should start fresh with the building.

The Garretts commenced proceedings in VCAT against Elim, claiming (among other things) that:

  1. the representations on Elim’s website, which they relied on when selecting Elim to inspect the property, were misleading and deceptive; and
  2. the inspector failed to inspect the property with due care and skill as required by the Australian Consumer Law.

Elim’s website marketed their services as thorough and technologically advanced as well as gave the impression that hidden problems would be found.  However, the report that was produced by Elim limited the scope of the inspection to a visual inspection only.  A visual inspection is standard for pre-purchase building inspections completed as part of the conveyancing process.

The report also specifically excluded some areas of the property from inspection because they could not be accessed.  This included the sub-floor where the majority of the damage was later found.  The property was tenanted at the time of the inspection and furniture obstructed some of the view of the property, particularly areas of the internal perimeter wall.  Termite damage was also later found to have been present in these areas.

Elim had noted in its report that it was ‘reasonable’ to discern that there was termite activity in some parts of the property that were not able to be inspected.  Elim also had advised the Garretts of the problems with the floors of the property, advising them that parts of the floor were ‘soft underfoot’ and would need attention in any renovation work.

Decision

VCAT found that:

  1. some of the representations made on Elim’s website were misleading, including the representation that Elim’s inspections were especially thorough and utilised high-level technology; and
  2. Elim conducted the inspection of the property with due care and skill, as the reason the termites were not identified was because of the stated restrictions to the inspection noted in the report and the structural issues were appropriately identified.

The tribunal ordered that the Garretts be refunded the $500.00 they paid Elim for the property inspection because of the misleading representations on Elim’s website.

However, the Garretts were not successful in their claim of $344,528.00 to cover the cost to them of demolishing the house and building a new home on the land.

What does this mean for buyers?

This decision highlights the importance of reviewing a pre-purchase inspection report thoroughly and, properly considering the limitations contained in the report.  It is very common for areas of a property to be excluded from building and pest inspection reports due to inaccessibility.  It is also important for purchasers to realise that a visual inspection (which is the type of inspection that is done as part of the building and pest inspection conditions in Queensland conveyancing contracts) may not identify all issues with the property.

Some problems, such as termite damage can only be identified through an invasive inspection.  This type of inspection is unlikely to be allowed by a seller as it may, by its nature, cause damage to the property.

Prospective buyers should carefully consider the contents of a pre-purchase inspection report and the weight of any recommendations made by the inspector, along with factors such as the age and relative condition of the house.  A great way to get more information is to attend the inspection with the building inspector or speak to them following the inspection to ask them questions.

If there are items in the report that you do not understand the nature of or the consequences attaching to, seek advice.  As learnt from this decision, building and pest inspection reports are not infallible and the limitations contained in these reports reduce the scope and liability of an inspector.

An experienced lawyer or conveyancer can help you to limit the risks involved in purchasing a property and deal with issues that arise from a pre-purchase inspection.

Miller Harris Lawyers would be happy to assist you with the purchase of your next property, please feel free to contact our conveyancing team on 07 0436 9700.

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4 tips to survive Valentine’s Day after your separation

February 13th, 2019

If you have recently gone through a separation, you might be dreading the upcoming annual “celebration of love” Valentine’s Day.

If you are anything like me and you are reading this article, your mind is probably already turning to the scene from Bridget Jones’s Diary where she is in her onesie pyjamas, by herself, drinking wine and eating chocolate and screaming the lyrics to Celine Dion’s classic, “All By Myself”.  Or you might be thinking about other movies that you have seen with exaggerated scenes of couples swooning in public on Valentine’s Day that make everyone feel uncomfortable.

My advice to you is to take charge and own this Valentine’s Day and plan ahead and adopt these few simple tips so that you might find yourself looking forward to Valentine’s Day, rather than dreading it:

  1. Don’t spend the day or night alone. I can almost guarantee that there are other loved ones and significant people in your life who would love to spend this time with you.  Get in touch with them now and lock them in for a celebration of your own.
  2. Now that you know who you are going to be spending Valentine’s Day with, plan something to do, that you will look forward to. This might be as simple as going to see a movie, having a movie marathon or games night at home, going to your favourite restaurant or that new place that you have been wanting to try.
  3. Treat yourself. After separation, a lot of people forget to do things for themselves, including appreciate themselves.  Reflect on something that you can give to yourself that will make you feel good.  It might be indulging in some food that you would not always eat, or it might be buying something that you have wanted for quite some time now.  Treating yourself doesn’t have to be expensive, it just needs to be rewarding to you.
  4. Treat others. As you have made the solid decision not to spend Valentine’s Day alone, why not treat the people who you are sharing it with?  As Valentine’s Day falls on a weekday this year, it may be as simple as baking or treating your colleagues to morning tea at work, writing a small thank you and appreciation card to those people who have been there and supported you during what has probably been one of the worst emotional times in your life.  You may also decide to write Valentine’s letters and place chocolates in your children’s lunch boxes.  There are many different ideas.

At Miller Harris Lawyers we care about all of our clients.  We understand that separation is emotional, stressful and complicated.  We are passionate about getting to know you, understanding your family and priorities and assisting you to reach an agreement so you can move forward.

If you require assistance through your separation, please contact one of our Cairns family lawyers to discuss your situation.

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What happens when separated parents cannot agree upon which school their child will attend?

February 5th, 2019

After parents have separated, it is not uncommon for many issues in relation to their children to come into dispute.  These issues may have previously been agreed upon prior to separation.  One issue that we see often in family law is the choice of school which your child will attend.  When this issue comes into dispute it can cause a significant deterioration in the relationship between the parents, as well as anxiety and stress for both the parents and child.

Which school a child will attend is a decision that both parents need to make jointly, unless one parent has sole parental responsibility for the child.

With the new year fast approaching, here are some tips on steps to take to resolve your dispute about schooling prior to the commencement of the first term:

  1. Raise the issue of schooling early and well before the commencement of the school term. Communicate with the other parent about which school you would like your child to attend and the reasons why.
  2. If the other parent does not agree with the school you have proposed and they propose an alternative school, consider whether or not that school would be in the best interests of your child. At the very least you should make your own enquiries and research about the school before coming to any conclusion.
  3. If you still have not reached an agreement invite the other parent to attend family dispute resolution, also known as mediation, to further discuss the issue of schooling. You should prepare for the mediation by researching all schools that have been suggested or which your child could potentially attend and the reasons why you propose your child attends or does not attend those schools

If an agreement can’t be reached at mediation, you will be issued with what is known as a section 60I certificate which will enable you to commence court proceedings to have a court decide which school your child will attend.  This should be a last resort.  Prior to commencing proceedings, you should obtain expert legal advice from an experienced family lawyer about what considerations the court will take into account.  This may also assist you in your negotiations.

If you require assistance with your family law parenting matter, contact our team of expert Cairns family lawyers today on (07) 4036 9700 or enquiries@millerharris.com.au.

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