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Are you in a de facto relationship?

April 6th, 2021

The answer to this common question is not as simple as you might expect.  A person will be considered to be in a de facto  relationship if, looking at all the circumstances of the relationship, they have a relationship as a couple and are living together  on a “genuine domestic basis”.

The most well-known test for determining whether two people are in a de facto relationship, is whether they have been living together as a couple for more than two years.

It is important to know that a couple can be living together for less than two years and still be considered to be in a de facto  relationship.  Most commonly, this happens where the couple have a child together, or have intermingled their finances, such as by purchasing a property together.

A lot of people want to avoid being in a de facto relationship because they believe their partner will automatically be entitled to  a share of their assets.  This is not true.

Even if you are considered to be in a de facto relationship, your partner is not necessarily entitled to a share of your property or  assets.  The court must first determine whether or not an adjustment of property between the spouses is necessary to do justice between them, based on their respective contributions to the relationship and their future needs.  In some circumstances the  court will not intervene if the property interests as they stand are just and equitable.

If you would like to discuss your relationship, property settlement or obtain advice on your family law matter, contact
one of our family lawyers today.

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Resigning as a Director? Don’t be late or the last

March 4th, 2021

From 18 February 2021 changes to the Australian Law were introduced by the Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 meaning that:

  1. if a director’s resignation is not notified to ASIC within 28 days, the resignation will take effect on the date of notification; and
  2. a director’s resignation will be rejected if it leaves the company with no director.

The legislation is one of a raft of measures aimed at preventing illegal phoenixing – stripping a company of assets and starting another in its stead (the phoenix).  Other more substantive reforms are already in place but these recent procedural changes will affect all directors, not just those involved in creditor-defeating restructures.

Company Director Resignation

ASIC must be notified within 28 days of a director’s resignation.  Previously, a failure resulted in a late fee; now the consequence will be that the director’s resignation date will be recorded as the date of notification to ASIC.  ASIC will override the actual date of resignation with the lodgement date.  This change is to prevent improperly ‘backdating’ a resignation to avoid director liability.

Regardless of their actual resignation date, directors will now be deemed to have continued as a director until the notification date, and will be responsible for actions taken by the company during that time.

An application may be made to ASIC or the court to fix a different resignation date.  This is discretionary and there are time limits for the application.

Resigning directors should make sure that their company lodges notice of resignation on their behalf, or lodge directly themselves to make sure their tenure is accurately recorded.

Last Man (or Woman) Standing

A director’s resignation will now be rejected by ASIC if, at the end of the day on which a director resigns, there will be no other directors of the company.  This measure is designed to prevent directors resigning to avoid the consequences of company insolvency.

Directors should be mindful of this where there is an internal dispute or financial difficulty.

For more information or legal advice about your role as a company director, please contact Miller Harris.

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A fair go for subcontractors – BIF Act amendments 2020

September 29th, 2020

Subcontractor late payments Queensland

Working in the building industry with or as a subcontractor?  This year has seen significant changes made to building industry payment laws that may affect you.

In July the Building Industry Fairness (Security of Payment) Act (“BIF Act”) was amended in the hope of improving the process for dealing with late and non-payment of subcontractors in Queensland.  The changes aim to:

  1. introduce new protections for monies in dispute;
  2. simplify trust account frameworks; and
  3. strengthen the regulatory oversight of trust accounts.

So, how is the new BIF Act achieving those goals?

  1. New protections for monies in dispute in business

The new legislation introduces security of payment reforms to better protect monies in dispute.  Now where an adjudicated amount is not paid within the timeframes required by the BIF Act, subcontractors may have recourse to a “payment withholding request”, issued to a party above the respondent in the contractual chain, in order to protect money that may be payable.  If that party does not withhold the adjudicated amount they could be liable for the amount owed to the subcontractor.

The updated BIF Act also enables a head contractor to lodge a statutory charge over the property where construction work occurred, if owned by a BIF respondent who does not pay an adjudicated amount in the required timeframe.

  1. Simplified trust account frameworks

Changes to the BIF Act promise to simplify trust account frameworks in a number of ways.  Prior to the amendments, head contractors were required to open three bank accounts for each eligible contract, including a retention account.  The changes reduce the number of accounts required to one single “project trust account”.  If a retention trust is required, a contractor is now able to hold all retentions across a number of projects in a single account.  The former “disputed funds account” has been abolished in favour of added protections for subcontractors.

The new project trust regime will be rolled out in stages to allow time to adjust to the changes, a plan that has been temporarily affected by COVID-19.  Provisions dealing with project trusts and retention trusts will not commence until “a day to be fixed by proclamation”, wording that provides the government with flexibility to work around the changing pandemic situation.  We do not expect to see full implementation of the project trust regime until at least 2023.

  1. Strengthened oversight of trust accounts

Though responsibility for oversight of project bank accounts previously lay with the principal, they have no oversight role in the new project trust regime.  Instead, the Queensland Building and Construction Commission (“QBCC“) will monitor the trust regime.  To this end, changes to the BIF Act increase the QBCC’s regulatory functions, including audit powers over trust accounts.  QBCC will, among other things, be empowered to “freeze” trust accounts, and request the provision of information about trust accounts in cases of noncompliance.  Retention trust accounts will be subject to regular independent audits.

To further assist QBCC in its monitoring and oversight role, legislative amendments to the QBCC Act have also been proposed to take effect on 1 October 2020.  These changes will introduce new penalties, including for provision to the QBCC of false and misleading information about a licensee’s financial situation, and for failure to provide a supporting statement that states all subcontractors have been paid when requested.

The changes to building industry payment laws, as they are implemented over the next few years, will significantly impact the conduct of disputes involving subcontractors.  If this is you, our experienced legal team is here to help, contact us on 4036 9700.

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Is your ex entitled to property that you acquire after separation?

August 20th, 2020

Updated 20 August 2020

The simple answer to this question is – yes.

Generally any property that is acquired after separation and before a final property settlement will be included as an asset in the property pool available for distribution even if the asset is held in only one party’s name.

A recent case examined this question in the context of an inheritance by the husband of $715,000.00 from his late brother’s estate after separation.

Whilst the parties had separated almost five years prior to the husband receiving the inheritance they had not applied for a divorce nor finalised their property settlement at the time the inheritance was received.

The court included the inheritance in the property pool that was available to be distributed to the parties in their property settlement.  This case serves as a warning that just because assets are acquired after separation does not mean that they are immune from the property settlement process.

It is not uncommon for clients who see us to have acquired significant assets after separation, such as purchasing a new house.

We recommend that parties seek legal advice and formalise their property settlement early after separation to prevent situations like the above from arising.  Contact our Cairns family lawyers today to obtain strategic legal advice on your family law property settlement.

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Commercial Landlords and Tenants: Renegotiating your lease in a pandemic

August 6th, 2020

At Miller Harris, we know that local businesses are feeling the impact of COVID-19.  The Commonwealth government previously announced a “code of conduct” to allow business tenants to negotiate rent relief with their landlords during the pandemic.   That code of conduct did not have any legal force, but after a considerable delay, the Queensland government passed regulations to put it into effect.

There are some myths going around about what rights tenants and landlords have in the pandemic.  In particular, there is no automatic right to a 50% rent discount.  Read on to find out how the system works.

If a tenant requests renegotiation of the rent or conditions under the lease, parties must enter into negotiations provided that:

  1. the tenant has an annual turnover of less than $50 million, or is not-for-profit; and
  2. the tenant is eligible for the JobKeeper scheme.

The landlord and tenant must share enough information with each other to enable them to negotiate in a fair and transparent way.  During the negotiations, both the landlord and tenant must cooperate and act reasonably and in good faith. At the end of the negotiations, the landlord is obliged to make an offer to the tenant.  If agreement cannot be reached, or a party does not negotiate, the matter can be referred to the Small Business Ombudsman.

For affected tenants:

  • Start the renegotiation process.
  • Do not simply stop paying your rent or expect your landlord to stop charging rent.
  • Get your business records in order so that you can demonstrate the impact of the COVID-19 measures on your business.

For affected landlords:

  • Do not increase the rent payable before 1 October 2020.
  • Be cautious about taking action against a tenant for failure to pay rent during this period.
  • Speak with your bank about what options are available if your tenants are unable to pay the full rent.

Finally, make sure that any agreement you reach is recording in writing and that changes to the lease are reflected in formal, enforceable documentation.

If you have any questions or concerns regarding your rights and obligations you should contact our experienced commercial and property law team as soon as possible on 4092 3555, or feel free to see us in our Mareeba office at 222 Byrnes Street, Mareeba.

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Important legal information about redundancy

July 14th, 2020

Redundancy – Is it genuine?

During these times of economic uncertainty, redundancy could, understandably, be on your mind.  As a business owner, you might be faced with the difficult decision to reduce employee numbers.  If you are an employee at risk of redundancy you may be wondering what your options are.

In either case, it is important to understand whether any redundancy is a “genuine redundancy”, or a termination on other grounds.  If a termination is a case of genuine redundancy, and the proper steps are followed, then the ensuing dismissal will not be unfair.

A genuine redundancy occurs where:

  • the employer no longer needs the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;
  • the employer has complied with any obligation to consult with the employee about redundancy (if an award or enterprise agreement requires consultation about major workplace change); and
  • the employee could not be reasonably redeployed in the employer’s enterprise or that of an associated entity.

Changes in redundancy requirements

There are many things that might happen in a business which could be described as a “change in operational requirements”.  It is a very broad concept.  Some examples include:

  • a downturn in trade that reduces the number of employees required;
  • technological development;
  • restructuring a business for the sake of efficiency, which reduces the number of positions available;
  • closure of the business; or
  • outsourcing of the employee’s role.

The key question is whether anyone needs to do the employee’s job in the face of the organisational change.  It may be that a particular job is no longer required to be performed even if some of the duties associated with that job are still being performed by other employees or have been outsourced to contractors.

Redundancy consultation

There is usually a requirement in modern Australian awards and enterprise agreements for an employer to consult with affected employees about impending redundancy.

Where an employer has  an obligation to consult, it is very important that the obligation is fulfilled.  Even if all other requirements have been met, a redundancy can still be an unfair dismissal if the proper consultation process is not followed.

Redeployment or redundancy

The final question is, whether it would be reasonable to redeploy a redundant employee into another role, instead of making the employee redundant.  Relevant factors include:

  • if any other job is available and, if so, the nature of that position;
  • the qualifications and experience required to perform the job;
  • the location of the job in relation to the employee’s residence; and
  • the remuneration which is offered.

If thinking about, or faced with redundancy, make sure that it is a genuine redundancy.  A failure to implement and follow a proper process of evaluation and consultation may raise the prospect of unfair dismissal, and the legal remedies and ramifications that go along with it.  If you have any queries, talk to our experienced team today on 4036 9700.

Please note these comments apply to employees covered by the Fair Work Act redundancy provisions.

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What you need to know about the new Federal HomeBuilder grant

June 16th, 2020

Federal HomeBuilder grant 2020

The Australian Government has recently announced a new “HomeBuilder grant” to boost the Australian economy, particularly the construction industry, in light of the Coronavirus pandemic.

The new HomeBuilder grant provides eligible homeowners and first home buyers with a grant of $25,000.00 to build a new home or significantly renovate an existing home.

HomeBuilder requirements

The following eligibility requirements apply:

  1. you must be an Australian citizen (not resident);
  2. you must have an annual income of $125,000.00 or less or, for couples, your combined income in the last financial year must be $200,000.00 or less;
  3. the building or renovation contract must be entered into and signed between 4 June 2020 and 31 December 2020 and work must commence within three months from the contract date (current projects do not qualify);
  4. for new buildings, the value of the home (including land) must not exceed $750,000.00; and
  5. for renovations:
    • the renovation must be valued between $150,000.00 to $750,00.00;
    • the pre-renovation value of the home must not exceed $1.5 million dollars excluding fixtures such as sheds and granny flats; and
    • some renovations are not covered such as adding a pool or detached garage.

HomeBuilder eligibility

Eligible homeowners will be able to apply for the HomeBuilder grant when their relevant State or Territory Government implements the grant.

The HomeBuilder grant is a temporary scheme which applies alongside existing first-home and home‑owner grants.  You can register your interest to receive updates when more information is available on the Australian Government Treasury website.

The existing Queensland First Home Owners’ Grant provides $15,000.00 towards purchasing or building a new house or apartment where the value of the home (including the land) is less than $750,000.00.  These grants have their own eligibility criteria.

First homeowners

First homeowners may also qualify for stamp duty concessions, and the federal government’s first-home loan deposit scheme and first-home super saver scheme.

If you are considering purchasing, building or renovating property and have any questions concerning the grants that may be available to you, please do not hesitate to contact our team of experienced property lawyers on (07) 4036 9700 or enquiries@millerharris.com.au.

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Separated but living under one roof? Here is what you need to know

May 26th, 2020

One impact of Coronavirus may be that more people find themselves separated from their spouse, but continuing to live together for a period of time.  In family law this is coined “separation under one roof” and there are important consequences to be aware of.

The most important thing about separating under one roof, is determining the actual date of separation.  This is typically the date where one spouse has the intention to separate, and that intention is clearly communicated to the other spouse.  There are many ways in which an intention to separate may be communicated and relevant factors include:

  • details of any conversation about separating between the spouses;
  • separating finances, including opening personal accounts and ceasing use of joint accounts;
  • a change in sleeping arrangements and living arrangements;
  • communication of separation to friends and family;
  • living separate social and public lives;
  • cessation of performing household duties for each other;
  • cessation of a sexual relationship; and
  • notifying government departments that you are separated, such as Centrelink.

It is also important to consider whether there has been any reconciliation of the relationship after the date that separation has initially been communicated.  Whether or not reconciliation has occurred can be a grey area requiring specific advice based on your circumstances.

The date of separation is very important as it triggers the following time limits for family law matters:

  • For married couples: You are only eligible to apply for a divorce 12 months after the date you separated. Once a divorce order is obtained, a further 12 month time limit is triggered for resolving all property division and spousal maintenance matters.
  • For de facto couples: You have two years after the date of separation to finalise both the division of your property and any spousal maintenance matters.

If property and spousal maintenance issues cannot be agreed to and formalised according to the requirements of the family law legislation, within the above time limits, then it may be necessary to commence court proceedings prior to the time limit expiring to protect your interests.

We recommend that you diarise the date that you have separated, including details of the separation and obtain independent legal advice as soon as possible after separation.

Our experienced family law team is here to help and can be contacted on 07 4036 9700 or enquiries@millerharris.com.au.

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Businesses beware! Business name renewal invoice scams

May 21st, 2020

Many business owners carry on business using a registered business name.  Registered names need to be renewed from time to time.  Private company service providers now have access to the business names register information, and some offer “renewal services”.  Unfortunately, some of these service providers are sending business owners “renewal notices” which look very much like official renewal notices or invoices from the registry, and call for payment more than double the fee to renew directly with ASIC.  No doubt they hope that businesses will simply put the “renewal notice” into their payment systems without question.

You do not have to pay for renewal through these service providers.

It is cheaper and just as easy to renew through ASIC.

Renewing your business name through ASIC is cheap, easy and quick.  You can visit their website at asic.gov.au.

ASIC sends a business name renewal notice at least 30 days before your renewal is due.  We recommend that you bin all other renewal notices received from anyone other than the ASIC.

ASIC provides the option of renewing your business name for either:

  1. one year, which costs $36.00; or
  2. three years, which costs $85.00.

Other service providers charge more than double the amount required by ASIC.  Please contact us if you are uncertain whether an invoice from a service provider is legitimate or not.

Do you need a business name?

You are required to register a business name if you are trading under a name that is different from your own name or your company’s name.

It is important to have a business name which is currently registered.  Carrying on business under a name which is not your own name, and not registered as a business name, is an offence.  It is also possible that someone else might register the name which you are using, leading to confusion and disputes.

If you have any questions concerning the operation of your business, please do not hesitate to contact our experienced team on 07 4036 9700.

Wishing you all the success for your business!

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Are your super and life insurance beneficiary nominations up to date?

May 5th, 2020

If you have finished (or are well and truly over) ‘Marie Kondo-ing’ your home, now is a good time to ensure that your superannuation and life insurance beneficiary nominations are in place and up to date.

What a lot of people don’t realise is that your superannuation and life insurance do not typically form part of your estate in the first instance to flow through your will.

In order to direct who your superannuation and life insurance is to go to, you should have beneficiary nominations in place with your superannuation funds and life insurance companies.

If you do not have a binding death benefit nomination in place (or your nomination has expired), the trustees of your superannuation fund have discretion to determine who they pay your superannuation death benefit to and in what amount, which may or may not be in accordance with your wishes.  Also, these nominations usually lapse every 3 years.

It is important that you read the beneficiary nominations carefully when completing as, while they may appear to be simple forms, they are still legal documents that require certain elements to be met in order to be binding and effective.

If you have any questions or would like assistance preparing your superannuation and life insurance beneficiary nominations, please do not hesitate to call our office on 4036 9700.

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