If you are a beneficiary under the Will you are entitled to a copy and you should request a copy from the family (if there is a Will). Otherwise, you should conduct a search through the Court to see if there has been an Application for Probate of the Will. This can be done on-line. If there has been an application, the search will list the applicant who is the executor and you will be able to get in contact with them. If you cannot find anything on the Register then you could perhaps advertise in a local newspaper such as the Courier Mail that you are searching for Wills of your late great grandmother.
For further information regarding Will matters please contact Jolynda Bos in our Brisbane office or Natalie Borg in our Mackay office.
Possibly. If you have sufficient proof that your son is unlikely to regain capacity and the type of Will you propose is one that he would be likely to make if he had capacity, then the Court may approve a Will on his behalf. For example, given that you are the primary carer and his mother has nothing to do with him, it may be reasonably likely that your son would want you to benefit more from his estate than his mother.
Quite often the answer is yes. Sometimes an independent contractor may be defined as an "employee" for a certain purpose - such as for superannuation, payroll tax, long service leave, or workers’ compensation insurance. Hirers often have an obligation to ensure that they are paying these entitlements to contractors either separately or as part of an invoice. There are many factors which will determine whether a contractor is an employee for certain purposes. It is vital that you obtain legal advice to ensure you are correctly paying or receiving these legal entitlements.
For further information regarding Employee matters please Alana Elliot in our Brisbane office, Scott McSwan in our Gold Coast office or Cyndel Muscat in our Mackay office.
There is a lot of misunderstanding about regular casual employment.
Some industry awards, such as the award for the building and construction industry, permit "regular casuals" - casual employees who work regular hours. Usually the award also provides that the the employee can elect to convert his/her employment to permanent employment after 6 months.
Not every industry has regular casuals, though, and employers may be at risk of "regular casual" employees claiming that in truth they were permanent employees and should be backpaid for leave entitlements.
Remember too that some industry awards (eg awards for the black coal mining industry and the firefighting industry) do not recognise casual employment at all! If you are confused about casual employment in your industry, make sure you call us.
For further information, please contact Louise Wessel in our Brisbane office, Scott McSwan in our Gold Coast office or Cyndel Muscat in our Mackay office
Your circumstances illustrate the importance of a) having a code of conduct; b) your employment contracts requiring employees to abide by the rules of accommodation centres. If you do not have those there is a much higher risk that a termination would be regarded as unfair. You also need to remember to give the employee an opportunity to explain what happened. You should seek legal advice as to the steps you need to take in order to satisfy your obligations under fair dismissal law. For further information regarding casual employment or employment contracts, please contact
You will need to apply to the Queensland Civil Administrative Tribunal (QCAT) to be an administrator on your father’s behalf. This will allow you to deal with financial matters such as selling the house. If the matter is urgent, you can apply for an interim order until your application is considered in full, by QCAT.
For further information please contact Jolynda Bos in our Brisbane office, Natalie Borg or Suzanne Brown in our Mackay office or Sean Diljore in our Gold Coast office.
You can't sack a worker for being sick even if they have used up their sick leave entitlements. The exception is where the sick leave taken constitutes a total of three months out of the year (exclusive of paid personal leave) and even then you have to be careful to ensure the dismissal is done properly and fairly. John has not yet taken more than three months unpaid sick leave so it is not possible to use that avenue. You are entitled to require John to provide you with a medical certificate 24 hours after the commencement of each absence; or such longer period as is reasonable in the circumstances. You should insist that John does so and if you have any doubts as to the genuineness of the medical certificate, you have a right to make further inquiries with his doctor. If you do that and he is not genuine, you'll find out soon. Please note, however, that John may provide you with a statutory declaration in lieu of a medical certificate. If John fails to provide you with either type of evidence within a reasonable timeframe you may have grounds to dismiss him. At this point you should call us again.
For further information, please contact Louise Wessel or Alana Elliot in our Brisbane office, Scott McSwan in our Gold Coast office or Cyndel Muscat in our Mackay office
The Standard Contract for the sale of businesses promoted by the REIQ and the Queensland Law Society does not cover this. Your lawyer should have included a Special Condition requiring the vendors to make you an administrator of the Facebook page so you could then remove them and take control yourself.
For further information, please contact Geoff Matheson or Harold Littler in our Brisbane office or Suzanne Brown, Kelly Parker or Kane Williams in our Mackay office.
Don’t do it! If you do, you stand a very good chance of ending up being sued for sexual discrimination and/or harassment, could possibly find yourself on the wrong end of a WorkCover Claim and on top of all of that, be sued in Fair Work Australia. To minimise the risk of that happening (and trust me it is a real risk) there are some steps you need to take now. Give us a call.
The policy might require you to inform the insurer if a company you are a director of goes into administration or liquidation. Whether you are covered should of come down to whether the insurer can prove that they would have withdrawn cover had they known.
For further information, please contact Michael Cope in our Brisbane office or Dannielle Sanderson in our Mackay office.
Generally that depends on your contract and if it does not say so you can’t. However under legislation in some states you are entitled to interest on late payments. For example, contractors who are licensed under the Queensland Building Services Authority Act can claim interest at a rate which currently works out to be 13%. However this figure does vary. This can add up to a lot of money quite quickly.
For further information, please contact Michael Cope in our Brisbane office or Dannielle Sanderson in our Mackay office.
You are probably referring to the Personal Property Securities Act and yes, it brings about significant change which almost certainly means your existing contract documents should be updated. If you don’t have a standard contract, the Act means that there are additional reasons why you should.
For further information, please contact Jolynda Bos in our Brisbane office or Suzanne Brown in our Mackay office.
You have to be very careful here. The builder may say you are in breach for not carrying out the works, try to impose liquidated damages or terminate your contract because you are not progressing the works. However if crossing the picket line would be a danger to your workers, ordering them to cross would likely be a breach of the Work Health & Safety Act and expose you to prosecution and liability. You need legal advice and urgently.
For further information, please contact Ian Heathwood, Louise Wessel or Alana Elliot in our Brisbane office, Scott McSwan in our Gold Coast office or Cyndel Muscat in our Mackay office.
It won’t be illegal if it’s done correctly. You should implement a policy regarding GPS tracking that applies to your entire workplace, as opposed to singling out the one guy. It is important to ensure the policy is properly drafted and implemented in such a way as to form part of each worker’s employment contract. Failing this, you could end up with unhappy workers (probably the ones who are ripping you off anyway) who might seek to take action against you under the Fair Work Act.
For further information, please contact Ian Heathwood, Louise Wessel or Alana Elliot in our Brisbane office or Cyndel Muscat in our Mackay office.
The National Employment Standards do not require employees to produce a medical certificate to substantiate absence due to illness, but an employer can require an employee to provide evidence that would satisfy a "reasonable person" that they should be entitled to such leave. It would be reasonable to reject a medical certificate from a veterinarian, as they are not suitable to certify unfitness for work.
For further information, please contact Louise Wessel or Alana Elliot in our Brisbane office, Scott McSwan in our Gold Coast office or Cyndel Muscat in our Mackay office.
Workers' compensation laws in Queensland extend to cover any activities organised by the business, but you also need to consider potential liability under sexual harassment and anti-discrimination laws. Despite the function officially finishing at 11:30pm, it is possible that any incidents that occur after that time could be held to be in connection with the staff members' employment and a claim under any of those laws could be made against you. Whilst it may sound like you are trying to be the "Fun Police", you should remind your employees to take care of their safety and the safety of others and that their obligations under all of those laws still apply at all times. Also, you should make it very clear to all, in writing that the function ceases at 11:30pm.
There is no general right to suspend an employee without pay whilst you investigate misconduct, even where their misconduct would justify dismissal without notice. You may only suspend an employee without pay where the right to do so arises under an Award, the employee’s contract of employment or a workplace policy. As no such right exists under the Plumbing and Fire Sprinklers Award 2010, you may only suspend your apprentice without pay if you have a right to do so under the apprentice’s contract of employment or a workplace policy to this effect. If you are relying on a workplace policy, your apprentice must have previously reviewed this policy and acknowledged that it forms part of the terms and conditions of his employment. Failing this, you must pay your apprentice for the period during which he is suspended. So that you do not find yourself in this position again, you should implement a workplace policy allowing you to suspend your employees without pay whilst you investigate misconduct. For information about the necessary content of such a workplace policy and how to ensure it is binding in respect of your employees, please contact us.
Be careful with emails. It is possible that one of the emails or the chain of emails together, constitutes a contract. If the emails contain an offer and acceptance and that has been communicated to the person who made the offer, a valid contract has been formed… even though no signatures have been exchanged and there is no formal contract. If all you want to do is to negotiate the issues leading up to entering into a formal written contract, make sure your emails make this clear!
In short: no. Upon bankruptcy a trustee is appointed. One of their roles is to sell assets. They are able to sell houses, even if they are the person’s primary residence. However, the trustee is not allowed to sell certain other assets. These include: most ordinary household/ personal items; most life insurance and superannuation policies; tools used to earn an income up to a value of $3,550; and cars or motorbikes used mainly for transport up to a value of $7,200.
For further information, please contact Paul Evans in our Brisbane office or Dannielle Sanderson in our Mackay office.
You can lodge a subcontractor’s charge if you had a contract with the builder (doesn't need to be a formal contract), he owes you money and the principal owes him money. The work must have been carried out in Queensland and some of it must have been done in the last three months. The charge is created by two documents your lawyer can help you with ...but check their experience in this area first as it can be tricky. Once you lodge a subcontractor’s charge, you become a secured creditor of the builder with respect to the moneys owing by the principal to the builder. In our experience, subcontractors are usually better off, in terms of recovering their debt, with a subcontractor’s charge rather than a Payment Claim, where the builder looks like going broke and especially so where they do actually go broke.
For further information, please contact Michael Cope or Ian Heathwood in our Brisbane office or Dannielle Sanderson in our Mackay office.
The leading employer associations representing sub-contractors in Queensland are working together to make submissions to Minister Flegg on what can be done to improve the sub-contractors’ lot. Working together will maximise the prospect of providing the government with solutions helpful to the sub-contracting industry generally. Watch this space!
The Hastie Group has over 40 companies. All have been placed into administration, with PPB Advisory as the administrator. Some of the companies are continuing to operate through receivers and will keep trading while the receivers organise to sell the businesses.
A building contract does not automatically terminate when a company is placed into administration. However, most formal contracts will contain a clause which terminates the contract upon either party going into administration and/or liquidation. You need to read your contract and seek legal advice if you are unsure.
If you do not have a formal contract, or there is no termination clause, then the contract remains on foot and all your rights and obligations under the contract still stand. This means you should not terminate the contract just because of the collapse, as you could be liable for damages. You should seek legal advice on whether there are any other grounds that would enable you to terminate the contract.
For further information, please contact Paul Evans or David McKewin in our Brisbane office.
We are not entirely sure at this stage but whatever you do, make sure you read your tenders and contracts very carefully, particularly any clauses which refer to passing on unanticipated costs, taxes and government imposts. Beware!
For further information, please contact Paul Evans, David McKewin or Sean Diljore in our Brisbane office.
In order for the redundancy to be valid, the former employee’s position must be abolished and his/her former duties subsumed into a new position.
The new responsibilities that you add to the existing role must change the job classification. You should then properly interview the employee to determine that he/she lacks the necessary skills and/or experience for the newly created position.
This will give rise to a redundancy because after the reorganisation the employee will be left with no duties to discharge.
You should make sure that you comply with the consultation requirements in the employee’s Award or EBA, and that you pay the employee their redundancy entitlements.
For further information, please contact Ian Heathwood, Louise Wessel or Alana Elliot in our Brisbane office or Scott McSwan in our Mackay office.
Yes. In a recent case, Fair Work Australia approved an enterprise agreement in which leave entitlements were incorporated into a fixed hourly rate so that workers may not be paid at all during actual leave.
The Agreement stipulated a total hourly rate for up to 50 hours per week. The hourly rate was said to reflect penalty rates, annual, long service and personal leave entitlements. However workers could request a reduction in their hourly rate of up to $3.00 per hour to be paid out when they took leave.
It’s highly unlikely that you will have to pay carbon tax yourself. However, you will inevitably have the costs of operating your business increased (as well as your personal cost of living increase). Treasury has estimated that carbon pricing will raise electricity prices for example by 10% immediately and a further 16% over the next five years.
For further information, please contact Paul Evans or Sean Diljore in our Brisbane office.
You could have and should have sacked him without notice for “serious misconduct” when he turned up under the influence of drugs, provided you had evidence (such as statements from fellow workers) that he was under the influence. Under Regulation 1.07 of the Fair Work Regulations 2009, serious misconduct includes an employee being intoxicated at work or under the influence of drugs. The employee is only entitled to outstanding wages, accrued annual leave and long service leave (if applicable) upon termination.
For further information, please contact Ian Heathwood or Louise Wessel in our Brisbane office or Scott McSwan in our Mackay office.
Yes you will. You can be prosecuted and probably will be for a breach of Work Health and Safety Act 2011 (QLD) in that you did not provide a safe system of access. The penalties under the new Work Health and Safety Act which came in on 1 January 2012 are far greater than they used to be too. However the opportunities for a defence under the new Act are better.
For further information, please contact Ian Heathwood or Louise Wessel in our Brisbane office or Scott McSwan in our Mackay office.
Under section 119a of the Workers Compensation and Rehabilitation Act 2003 (Qld) an employee who is currently on WorkCover is not restricted from taking annual leave or accruing annual leave, sick leave and long service leave in this time.
Dishonesty can amount to serious misconduct entitling you to terminate an employee’s employment. However, as with all employment matters, be very careful and check with an industrial relations/employment law specialist first.
Yes under the new workplace health and safety laws, you are not entitled to refuse to answer questions from an inspector on the grounds that you might incriminate yourself. They should however give you a warning that you can claim legal professional privilege and you can (and should!) have your lawyer present.
If this happened on or after 1 January 2012 you are likely to be in a much better position than if it had happened before then. The new Work Health Safety Act started on 1 January. The opportunities for a defence to a work accident prosecution are much better under the new Act. Please contact your lawyer immediately but ensure they know how the new Act works. If they don’t, give us a call.
For further information regarding the new Work Health Safety Act, please contact Ian Heathwood in our Brisbane office.
Your friend is talking about what can happen under the new Personal Property Securities Act. And yes, in some circumstances, that might be exactly what happens. There are however steps you will be able to take which would prevent that happening. You would have to register your interest as owner of the temporary power supply as a “security interest” on the Personal Properties Security Register. You need to get legal advice about how to protect yourself moving forward, because this new law came in on 30 January, 2012.
For further information regarding the Personal Property Securities Act in relation to contractors, please contact Paul Agnew in our Brisbane office or Suzanne Brown in our Mackay office.
Your friend is talking about what can happen under the new Personal Property Securities Act. And yes, in some circumstances, that might be exactly what happens. There are however steps you will be able to take which would prevent that happening. You would have to register your interest as owner of the temporary sewerage system as a “security interest” on the Personal Properties Security Register. You need to get legal advice about how to protect yourself moving forward because this new law came in on 30 January 2012.
When an employee returns from parental leave the employer is required to give them their job back. If that position no longer exists then the employer must provide the employee with a position that they are qualified for, “suited nearest” to the employee’s previous position and pay rate prior to their parental leave. Careful, you could be liable for a fine of $6,600 as an individual and in addition to up to $33,000 for the company. This is in addition to damages which are uncapped. Seek urgent legal advice.
For further information regarding employment issues, please contact Ian Heathwood in our Brisbane office or Scott McSwan and Cyndel Muscat in our Mackay office.
It is invalid because it does not sufficiently identify the work included in the Payment Claim. When you issue your next Payment Claim you should include the work in the invalid one too.
For further information regarding Payment Claims, please contact Michael Cope in our Brisbane office or Dannielle Sanderson in our Mackay office.
Your lawyer is wrong. There is a recent Supreme Court case in which it was ruled that you cannot sever parts of an invalid Payment Claim to make the rest of it invalid. You will have to start again (preferably with a different lawyer).
For further information regarding Payment Claims, please contact Michael Cope in our Brisbane office or Dannielle Sanderson in our Mackay office.
Your accountant is spot-on. The PPS Act brings in a whole new regime under which, if you do not register certain rights you have in legal documents, you could expose your business to substantial risks. For example, if you hired equipment out (say, a temporary power supply or temporary sewerage service on a construction site), and the builder to whom you hired it goes broke, even though you own that equipment, the builder's liquidator will be able to sell it and keep the proceeds. That's not all, though. Every contractor will need to have a review of their structure, standard terms of trade, subcontractor agreements, hire agreements and much more.
Personal Property Securities Act 2009 (“PPSA”)
For further information regarding the PPSA, please contact Ian Heathwood in our Brisbane office or Suzanne Brown in our Mackay office.
Unless your contract with the developer says something different, the general law is that the copyright in the website is owned by the person who created it. There is an implied right for you to use the material for the purpose it was created. This implied right does not however give you the right to vary the material. In the circumstances, you may have to pay the developer for the right to change the site. The moral of the story is that when negotiating with anyone in respect to the creation of intellectual property (such as websites), make sure the contract spells out who the owner of the intellectual property will be.
For further information regarding copyright issues, please contact Harold Littler in our Brisbane office.
No. This is a common error that we find when advising clients on the validity of their Payment Claims. In order to be valid, a Payment Claim must "identify the work to which it relates". If the claim does not identify the work to which it relates, it is invalid. This does not require a detailed statement of the works to be done, but there must be sufficient detail to enable the person who receives it to work out if they should provide a Payment Schedule. In particular, it must be sufficient for them to work out whether or not some of the work in the Payment Claim was performed in the last twelve months. In assessing whether a Payment Claim complies with the Act, a court or an adjudicator is entitled to refer to any correspondence between the parties. Whilst an enormous amount of detail is not required, it is entirely inadequate to put the sort of general description contained in the Payment Claim referred to in the question.
If the money was taken out of the superannuation fund before this fellow went bankrupt, it and any thing that money was used to acquire, can be attacked. People commonly make the mistake of thinking the protection of superannuation moneys from bankruptcy, extends to money that came out of the fund before the bankruptcy. Money withdrawn from super after the bankruptcy will be protected in most circumstances just as would any assets purchased with that money.
For further information regarding debt recovery, please contact Michael Cope in our Brisbane office.
To be entitled to request flexible working arrangements a full time or part time employee must have completed at least twelve months continuous service with his or her employer. The employee must make the request in writing, setting out the details and the reason for the change. You only have twenty-one days to respond. Basically, you have to show “good business grounds” as to why you won’t agree. If you don’t respond in the twenty-one days, you could be up for a $33,000.00 fine!
For further information regarding employment issues, please contact Ian Heathwood in our Brisbane office or Scott McSwan in our Mackay office.
If you have any BSA licence, such as air conditioning, plumbing, fire, etc, do not do anything until you have taken legal advice from someone who knows and understands how the BSA rules work. Most of the time if a company is put under, you will lose your BSA licence and it is exceptionally difficult to get it back. There are however some “tricks to the trade” which might save your bacon so call someone who knows what they are doing. Be very careful who you get advice from.
For further information regarding contracting businesses or BSA Licences, please contact Michael Cope in our Brisbane office or Dannielle Sanderson in our Mackay office.
You will need to apply to the Queensland Civil and Administrative Tribunal (“QCAT”) to be an administrator on your father’s behalf so that you may deal with financial matters such as selling your father’s house. If the matter is urgent you may apply for an interim order until your application is considered by QCAT.
For further information regarding Power of Attorneys, please contact Ian Heathwood in our Brisbane office.
Yes many contractors will need to. It is expected that the model Work Place Health and Safety legislation will come into effect on 1 January, 2012. A number of major changes will be introduced. We are advising our clients to start having all of their current contracts and Work Place Health and Safety protocols risk accessed now to reflect the new requirements. Remember that any contracts that you enter into now are binding and will be ongoing after January 2012 and will be affected by the new model Work Place Health and Safety legislation.
For further information regarding Workplace Health & Safety Legislation, please contact Ian Heathwood in our Brisbane office or Cyndel Muscat in our Mackay office.
Yes. Also, you probably couldn’t pass legal title on delivery even if you wanted to. Your contract with your supplier will almost certainly contain a clause to the effect that title in the materials you buy from them does not pass to you until you actually pay for them. Change the contract to read that title passes upon payment by the builder for the materials.
For further information regarding building contracts, please contact Michael Cope in our Brisbane office or Jennifer Grant in our Mackay office.
Yes. This is a very unfair clause and you should have it re-written at least to make sure you can claim an extension for wet weather and other causes beyond your reasonable control. As this could be sign that the rest of the contract could be bad for you, if the contract is for a substantial sum, you should ask your lawyer to look at if before you sign.
At common law the failure of a builder to make a progress claim is very rarely a breach of contract which would entitle a subcontractor to terminate their contract with the builder. However, under the Building and Construction Industry Payments Act if you deliver a valid payment claim and the builder does not deliver a payment schedule within 10 business days or does not pay the amount that they admit is owing by the time it is due you can suspend work by giving the builder a notice that you will do so if they do not make payment within two business days. If you suspend work correctly under the Act then it is not a breach of contract and the builder cannot sue you for it. As the consequences of getting this wrong can be dire you should always check with a lawyer before suspending work.
For further information regarding payment claims, please contact Michael Cope in our Brisbane office or Jennifer Grant in our Mackay office.
Quite possibly. Any contract with indemnity clauses like this is very dangerous. If you are liable under such a clause your insurance most likely won’t cover it so you’d have to pay any such claim yourself. You had better get a lawyer to check the contract for you and ask for an amendment to that clause.
For further information regarding contracts, please contact Danielle Sanderson in our Mackay office.
On the face of it “yes’ because you didn’t respond with a Payment Schedule in the 10 business days. However, this might be one of the very rare circumstances where you could successfully defend the claim. The basis of that defence would be that he has engaged in misleading and deceptive conduct under the Trade Practices Act in leading you on and telling you it wasn’t necessary to put in a Payment Schedule. You should never fall for this and always respond to a Payment Claim within the 10 business days unless you are happy to pay the lot.
For further information regarding payment claims, please contact Michael Cope in our Brisbane office.
You need to urgently check each contract. You probably have a right to claim for an extension of time. If so, do so immediately and follow the contract provisions closely. You might also have some other rights to suspend work or even terminate the contract. Act quickly but carefully.
For further information regarding contracts, please contact Michael Cope in our Brisbane office.
I don’t need to see them at all. That High Court case means there could be substantial adverse tax consequences for family trusts, unit trusts and trusts set up in wills but not superannuation trusts. If you have a family trust, unit trust or will containing trust provisions, send copies of them into me ASAP so that we can have a look at them.
For further information regarding trusts, please contact Ian Heathwood in our Brisbane office.
Yes. Often court cases are won or lost not necessarily on the facts or the law but on the tactics used. If the claim against you truly is unsustainable and the plaintiff is in liquidation, you could consider bringing an application for “security for costs”. This will require the liquidator to pay money into court as security for any costs the liquidator would be ordered to pay you, when and if the liquidator loses the case. Liquidators are usually very reluctant to do this so you might be able to use this tactic to effectively bring the whole thing to a stop. Raise it with your lawyer and tell him to think strategically.
For further information regarding claims, please contact Michael Cope in our Brisbane office.
Yes. There are two types of claims that can be brought against you. One under the law of contract. The time has expired, so she can’t sue you that way. However, you can still be sued based on the law of negligence because the time limit only starts when the owner discovers or should have discovered the defective work. You should immediately contact your insurer although for her to sue you based on the contract may not be covered. You should contact your solicitor as you may be able to argue that your work wasn’t negligent or to show that the owner should have been aware of the defect more than six years ago in which case the claim will be out of time.
For further information regarding claims, please contact Dannielle Sanderson in our Mackay office.
You will almost certainly find that when you created your account with the supplier, you signed their standard terms and conditions and in that document, you gave them the right to do exactly what they are doing. That is why you must always read what you are asked to sign and if it is a legal document and you do not understand it fully, ask a practising solicitor to explain it to you. That way you will know what you are letting yourself in for it you sign.
For further information regarding suppliers issues, please contact Michael Cope in our Brisbane office.
It is true that you have no contractual obligation to pay the sub sub contractor. But, he may well be entitled to what is called a “sub contractor’s charge”. If so, you may well end up having to pay money into court as he suggests. This is a tricky area and if you do not follow the rules properly, you can end up being personally liable for the sub sub contractor’s bill. Take urgent legal advice.
For further information regarding contractor issues, please contact Cyndel Muscat in our Mackay office.
You can sack an employee without notice if they are guilty of “serious misconduct”. Regulation 1.07 of the Fair Work Regulations 2009, provides that serious misconduct includes an employee being intoxicated at work or who is under the influence of drugs. Therefore, you are within your rights to summarily dismiss the offending employee without providing him with any warning. This termination should be provided in writing citing your reasons. The employee is only entitled to outstanding wages, accrued annual leave and long service leave (if applicable) upon termination.
For further information regarding employee issues, please contact Ian Heathwood in our Brisbane office.
If you treat someone who is really an employee as a contractor there could be significant adverse tax, superannuation and Work Cover consequences for you. The tax office has announced that for businesses with an annual turnover of less than $2,000,000.00, one of its target areas for auditing, is how contractors are doing just what you plan to do. Make sure you take proper legal advice and document the arrangements of a contractor who might otherwise be considered an employee or you could end up in quite some trouble.
The taxman, just like everyone else, is subject to the laws relating to preferential payments. If a company is going down and it pays one creditor in preference to other creditors, the payment can often be recovered by the liquidator. It sounds quite likely that’s what happened here… a lucky day for you and the other creditors.
For further information regarding liquidation matters, please contact Paul Agnew in our Brisbane office.
Just because he has used the form of a letter, does not mean it is not a Payment Claim. Remember you only have 10 business days to put in a Payment Schedule. If you don’t, you will almost certainly end up having to pay the full amount, despite your dispute with him. In your payment schedule you should not only raise disputes as to the amount and any defects but any technical problem with the payment claim. If you have any doubts you should consult a solicitor who specialises in building and construction law.
For further information regarding Payment Claims, please contact Michael Cope in our Brisbane office or Dannielle Sanderson in our Mackay office.
I see from your email address that you are a concreting contractor. Your work is covered by the Building and Construction Industry Payments Act. “Pay if and when paid” clauses, like the one in your contract, are illegal under Section 16 of that Act. Tell this to the builder and if he still refuses to pay, consider making a Payment Claim under the Act to get your money back.
For further information, please contact Michael Cope in our Brisbane office.
The Tax Office has announced that for this financial year, they will be paying particular attention to the distribution of income from trusts. This is associated with a recent High Court case which effectively means that most trust deeds used by business people need to be reviewed and most likely amended to avoid the risk of ending up paying more tax than you might otherwise.
For further information, please contact Sean Diljore in our Brisbane office.
Not if you have put up a Deed of Covenant and Assurance (“DCA”) to support the BSA licence as many contractors do. It’s not even as simple as having the BSA cancel the licence and return the DCA to you. The DCA is a personal guarantee by you and needs to be taken seriously. In the current case we have, a builder was told what you were told and now, years later, is being sued personally on the DCA for $380,000. Work out what you propose to do and run it past your lawyer, making sure they actually read the DCA and the relevant sections in the Act because getting a DCA released is more tricky than it seems at first glance.
For further information, please contact Michael Cope or Ian Heathwood in our Brisbane office.
It comes down to the words used in the documents. The builder has used very wide language which might be argued to include the extras you have identified. Further, your email does not clearly say that you are giving an estimate only. Nor is it totally clear that you offer to do the job on a cost plus basis. You need to get your paperwork right including being very specific as to whether something is a quote or an estimate and if its cost plus, make it absolutely clear. Remember, the clearer the contract the less chance of there being an expensive misunderstanding and, if you have a QBSA licence, the law requires you to have a written contract for any “building work” and that includes all the trades, except electrical. Proper, clear, written contracts are not just best practice but can save you thousands!!
I hate to tell you but under s56AC Queensland Building Services Authority Act, if you hold a BSA licence and you go bankrupt or the company which you are a director of goes down, you are deemed to be an “excluded individual”. That means you cannot hold a BSA licence unless you apply to the BSA to be a “permitted individual”. It does not matter that the company is totally unrelated to your plumbing business. I know that seems unfair but that is the law. You need urgently to take legal advice because this is very serious.
It was. There is a way around it now but you have to be very careful how you do it.
As you know, we are only lawyers but what I can tell you is that you have already hit on one of the most important things. That is, the establishment of a strong brand which is not totally dependent and reliant on you personally. If the only reason people come to your business is because they know you personally then maybe there is not much value in the goodwill of your business. However, I know your business. I know that you have spent many years developing the brand, push the brand at every opportunity, have protected the brand through proper trademarking and got proper long term contracts with the companies you provide maintenance and service work for. So, there are very good reasons to believe you have real goodwill value. You put the right things in place years ago. What most small business operators do not realise is that they have to put things in place, like trademark protection of the business name, proper contracts with their major clients etc, in place now and this will have a long term impact on the value of their business when they choose to sell. You should be alright.
For further information, please contact Ian Heathwood in our Brisbane office.
Unfortunately the answer is probably “yes”. Provided that the trade mark has been properly registered and has continued to be used and re registered each ten years the owner of the trade mark is entitled to prohibit anyone else using the name in Australia. If the owner of the Trade Mark is willing you may be able to negotiate to purchase the Trade Mark or obtain a licence to use the name (probably for a fee) in Queensland.
When starting up a new business, just checking existing company and business names is not sufficient. It is important to remember that registering a business name or company does not give the business owner any proprietary rights to the name. It is wise to get an intellectual property law specialist to carry out searches to make sure the name is available and capable of being registered as a trade mark as well as a domain name in any jurisdiction in which you intend to trade.
For further information, please contact Harold Littler in our Brisbane office.
As related by IP Australia In 1972, Frank Bannigan, Managing Director of Kambrook, developed the electrical power-board. The product was hugely successful and was the basis for Kambrook’s growth to become a major producer of electrical appliances.
However, the power-board was not patented and Kambrook ended up sharing the market with many other manufacturers.
According to Mr Bannigan, “I’ve probably lost millions of dollars in royalties alone. Whenever I go into a department store and see the wide range of power-boards on offer, it always comes back to haunt me.”
Today Kambrook has a number of patents and pending applications for improvements in a range of consumer goods.
For further information regarding the protection of your bright ideas and inventions, please contact Harold Littler in our Brisbane office.
Sounds like he has a registered trademark which you have infringed. If so, on the face of it, he may well have the rights he claims. Just because you have a registered business name or a company using a name, it does not mean you “own” that name. You should call Harold Littler, a trademark attorney and intellectual property lawyer at McKays.
For further information regarding Intellectual Property, please contact Harold Littler in our Brisbane office.
The accountant might be right but you still may be able to put the necessary intellectual property rights protection in place now. You need to consult a lawyer specialising in trademarks and intellectual property rights. There are only a handful of intellectual property lawyers who are trademark attorneys as well in Queensland.
Yes, unless someone (like a de facto spouse) succeeds in challenging the will. This is because he did not actually get divorced, the Will stands. Anyone who is separated but not divorced should immediately do a new Will.
For further information regarding will matters, please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
Most likely. Giving it to the foreman on site will usually not be good service unless you have agreed with the builder that they would accept that. This is because usually the builder is a company and you can only serve the company by delivering or posting the document to its principal place of business or its registered office or by giving it to a director.
For further information regarding Payment Claims please contact Michael Cope in our Brisbane office.
Read your Contract. It depends on what the Contract says. It probably says no variation is allowed unless the site instruction is in writing. However, in some situation you might be able to get around that. You had better get some legal advice.
For further information, please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
Possibly. If the Contract contains a rise and fall clause you can. As is so often the case, you need to read the Contract and possibly get legal advice to know what the answer is.
No. Administration is a preliminary process whereby an administrator is appointed to takeover control of the company. The administrator determines whether there is any prospect of the company somehow successfully returning to trading. If not, it goes into liquidation and then but sometimes (very rarely) the company survives and resurfaces. In a liquidation, the company is a dead duck.
If you would like further information regarding Administration issues please contact Paul Agnew in our Brisbane office.
It might be possible to force him to grant you a lease but it is likely to be a very expensive exercise. Buying a business without a solid lease in place is asking for trouble. Legals are like medicine. It’s not nice to pay for them upfront but if you don’t, the result can be far worse!
If you would like further information regarding buying and selling businesses please contact Kelly Parker in our Mackay office.
Again, it depends on the terms of your Contract. It might say the builder can alter the time table as they see fit. Or it might say that if there is a conflict between the two time tables, the builder’s time table in his Contract with the principal will prevail, in which case, you are stuck with it. You might however be able to claim a variation for acceleration of the works.
If you would like further information regarding building contracts please contact Michael Cope in our Brisbane office or Dannielle Sanderson in our Mackay office.
That depends on what type of tenancy agreement you have in place. New laws have recently come in which provide that the notice periods for ‘without ground’ terminations by the landlord are:
There are other things you need to know about these new laws if you are selling your rental property:
If you would like further information regarding tenancy matters please contact Geoff Matheson in our Brisbane office.
Just because you did not sign the Contract does not mean that the terms of the Contract may not apply. If you were offered the job on the terms of the Contract (for example the contract was included in the tender documents) and you started work and have worked in accordance with it since, it is very unlikely that you can now go back and claim that the Contract does not apply. You need legal advice.
If you would like further information regarding building contracts please contact Michael Cope in our Brisbane office.
Yes. Firstly you could do what is commonly (but incorrectly) called a “Prenuptial Agreement” and secondly, you could do a “Co-ownership Agreement”. These can both protect you if your relationship fails.
If you would like further information regarding de facto relationships please contact Jennifer Hetherington (Rice) in our Brisbane office.
Sounds like your worker didn’t have third party property damage insurance on their car. Because she was an employee engaged on business for you, you will be liable for all loss suffered as a result of your worker’s negligence. Can I suggest you don’t let your employees drive their own cars because you can never know if insurance is in place or not.
If you would like further information regarding property damage insurance please contact Michael Cope in our Brisbane office.
No but there is a catch. Small businesses with less than 15 employees will not have to pay redundancy pay unless their employees are covered by a modern award which overrides the National Employment Standards. For example employers must make redundancy payments to onsite construction employees except for misconduct or refusal of duty. Small businesses are not exempt, however it will be capped at 8 weeks pay.
If you would like further information regarding redundancies please contact Michael Cope in our Brisbane office or Cyndel Muscat from our Mackay office.
Yes. But they have to be drafted very carefully. It is not something you can just do yourself so make sure you see an experienced family lawyer.
If you would like further information regarding Prenuptial Agreements please contact Jennifer Hetherington (Rice) in our Brisbane office or Cathy Kreig from our Mackay office.
It depends on whether the employee had a contract of employment which prohibited him from stealing your customers. If so and it is drafted properly, you can prevent him from working for those people. If you don’t, there is basically nothing you can do. If you want to protect your business, make sure your employment contracts contain a restraint of trade.
If you would like further information regarding contracts of employment please contact Michael Cope in our Brisbane office or Cyndel Muscat from our Mackay office.
From 1 July, 2009 an employee who is made redundant can claim for unfair dismissal if they can show that the employer could quite reasonably have redeployed them into another job in that business or a related one.
If you have a written contract with him, check it says Ian Heathwood. If it has a clause allowing him to do that, yes he can. Why don’t you get your contracts drafted and put a similar clause in?
If you would like further information regarding contracts and their inclusions please contact Ian Heathwood in our Brisbane office.
No. Administration is a preliminary process whereby an administrator is appointed to takeover control of the company suggests Paul Agnew of McKays Solicitors. The administrator determines whether there is any prospect of the company somehow successfully returning to trading. If not, it goes into liquidation. Sometimes (very rarely) the company doesn’t go into liquidation and survives. In a liquidation, the company is a dead duck.
If you would like further information regarding liquidation and administration please contact Paul Agnew in our Brisbane office.
Probably not. Almost certainly the agreement you signed with your supplier will have a retention of title clause suggests Michael Cope of McKays Solicitors. This entitles your supplier to take back the goods if you have not paid for them and that usually includes even if they are onsite. You should have a retention of title clause in your contracts with your customers too, so that if they don’t pay, you have at least got a chance of getting your materials back.
If you would like further information regarding contracts and their inclusions please contact Michael Cope in our Brisbane office.
If it is as bad as you say, you need to urgently get advice from your accountant to establish whether the business is insolvent warns Paul Agnew. If it is, you will almost certainly have to put the business into administration. If you do not, you as a director, will become personally liable for the debts of the company. If that happens, you could well lose everything you own, including your house. Act immediately!
According to Michael Cope of McKays Solicitors, there are a couple of bases for claiming interest. Firstly, your contract may provide you are entitled to interest on late payments. If so, and you are not paid on time, you can claim the interest in the next progress claim (or Payment Claim under Building and Construction Industry Payment Act if you are making one). Secondly, even if your contract does not give you the right to interest on late payments, if your work is governed by the BSA (electricians are not) you can use section 67P of the QBSA Act to claim penalty interest at a rate which is currently over 13%. Finally, even without all that, if you get a judgment against someone, you can get interest then too at 10%.
If you would like further information regarding contracts and payment terms please contact Michael Cope in our Brisbane office.
Receivership means that a secured creditor, such as a Bank holding a charge or mortgage, has taken possession of the company and its assets for the purpose of liquidating the assets to pay themselves. It does not legally prevent the company paying other creditors. When a company is wound-up, the liquidator has a responsibility to pay out all creditors. Paul Agnew of McKays Solicitors warns that if you are dealing with a receiver or liquidator who is claiming monies you need to establish if they have the right to lawfully claim such monies from you. Paying to the wrong party can be a costly mistake.
If you would like further information regarding receiverships please contact Paul Agnew in our Brisbane office.
A CVL stands for “Creditors’ Voluntary Liquidation”. Sometimes it is better to put the company straight into liquidation rather than go into voluntary administration first. It can be cheaper and quicker. However, if you have given a lot of personal guarantees, it may well be best to go into voluntary administration. Each case is different and you need expert advice from your lawyer and an insolvency practitioner. Whatever you do, do not do nothing or it is likely to cost you big time. Remember, any debts the company incurs whilst it is insolvent become debts of the directors (including shadow directors – people who are not directors by title but act as directors).
If you would like further information regarding liquidations, administrations or insolvency issues please contact Paul Agnew in our Brisbane office or Dannielle Sanderson in our Mackay office.
This is a heavy hint that your Bank thinks you may not be a good customer and might be looking at getting rid of you. You will have to pay the costs of the consultant which is likely to be very expensive and very distracting. If you act quickly, you might be able to buy some time from the Bank and see if you can refinance which may well be a cheaper option. It also might be a sign that you are having cashflow problems in which event you probably need to see your lawyers about chasing up your debtors. Do that anyway!
If you would like further information regarding debt collection please contact Dannielle Sanderson in our Mackay office.
Repudiation of a contract is the wrongful refusal to do what you have contracted to do. Usually you have no right to stop work if you are not paid. The main exception to this is if you have met the requirements of the Building and Construction Industry Payments Act. If you have stopped work when you are not entitled to the builder is entitled to terminate the contract. If that is so, he will be able to engage another contractor and sue you for any additional costs. Get urgent legal advice.
If you would like further information please contact Michael Cope in our Brisbane office.
If you have received any winding up papers contact your lawyer urgently as strict time limits apply. If all you have is a letter of demand you should concentrate on the builder because if you had the money from the builder you would be able to pay your supplier. If you have not done a Payment Claim under the Building and Construction Industry Payments Act yet, do it straight away. If they do not pay you within ten business days or give you a Payment Schedule, you will be able to force them to pay you the full amount and hopefully, within time to get the money onto your supplier. Also, keep your supplier fully informed about what you are doing so they know you are serious about chasing the money.
The dispute resolution process will require the parties to participate on a “bona fide basis”. That means, to act in good faith, honestly, without fraud, collusion or wrongdoing. In common parlance what the mediator is saying is that neither you or the developer are being “fair dinkum” in trying to resolve the dispute i.e. bona fide means fair dinkum.
Liquidated damages means a specified sum which a party has to pay if certain things happen or do not happen, for example, within a certain time. Unliquidated damages are damages the extent of which in monetary terms is not pre-set and which has to be assessed by a judge or jury. Most people just talk about “damages” as distinct to liquidated damages when they mean the amount of a claim which is not pre-ascertained.
If you would like further information regarding unliquidated damages please contact Paul Agnew in our Brisbane office.
Just because it is not specifically mentioned in the quote does not mean you do not have to do it. If the quote specifically excludes the work in issue, you would not have to do it. However a one off quote usually amounts to a contract for a lump sum and carries with it the requirement that you must carry out all works which are necessarily incidental to enable completion, even if those works are not specifically referred to in the subcontract documents or the quote.
If you would like further information please contact Michael Cope in our Brisbane office or Dannielle Sanderson from our Mackay office.
Estoppel is a doctrine of law to the effect that where you have represented something to be the case, knowing that the other person is going to rely on what you say and they act on it to their cost, you cannot subsequently act inconsistently with the representation. I suspect the builder says you promised him you would do something and that he has relied on that for example, in giving you and not the other contractor, the job. Ask him to provide more details of why he says you are estopped and send it to us.
Some types of construction contracts are required by legislation to be in writing, others are not. But, even then it is advisable to “get it in writing” to ensure both parties understand their rights and obligations. A written contract can avoid a “he said, she said” dispute and save unnecessary costs with litigation.
If you would like further information or assistance in preparing your contract please contact Michael Cope in our Brisbane office.
You are not the only ones. The Australian Communications and Media Authority have received 30,000 complaints since the “Do Not Call Register” came in, just like yours. Whilst that does not sound too good, they are in fact prosecuting some of these telemarketers at the moment. Make a complaint to the ACMA by calling them on 1300 792 958.
No. You should however ask them if they are happy to be your executor because if you put them in and they don’t want to do it, it could end up costing your estate quite a lot. Once you have signed the Will, it is very important that you tell them that they are the executors but you do not have to show them a copy of the Will or tell them who gets what under it.
If you would like further information please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
You have every reason to be worried. If they stay together for two (2) years or more (and in limited circumstances a lesser period than that) he will acquire very similar rights for a property settlement as someone who has been married. Even if they do not stay together for long and don’t get married, it is almost certainly still going to be messy and expensive for your daughter and possibly yourselves. At the bare minimum there should be a Cohabitation Agreement which deals with property in her sole name and any joint property your daughter and her boyfriend acquire in the event of a breakup, death, bankruptcy etc. Your daughter should also include in that Cohabitation Agreement clauses protecting her entire financial rights.
If you would like further information please contact Jennifer Hetherington (Rice) in our Brisbane office.
Unfortunately you are right. You probably can’t remove the hot water cylinder. Once you have fixed it in place, it becomes part of the land but to remove it would be theft. To tell you whether it has become part of the land I would need to know how it has been installed. It makes a difference whether it is sitting on the ground or is fixed in place and if it is fixed, how it is fixed. If it is a fixture you can only take the guy through the courts. A guide on how to do this can be found on the legal section of trade associations which have a relationship with McKays Solicitors.
No doubt your mate had what we in the legal industry call “simple mum and dad Wills”. The other lawyer was no doubt talking about more complex Wills incorporating trusts. This can be expensive but could save your family tens of thousands of dollars tax and avoid, among other things, the risks of your children losing their inheritance in a divorce or through some other financial disaster.
If you want a good example of a family being torn apart and wasting hundreds of thousands of dollars on legal fees because someone died having tried to use a Will kit, you should have a look at the case regarding Peter Brock, the late racing car legend. His family has been in and out of court since he died and as we understand it, it’s about to go to court for another round. “Yahoo!” for the lawyers, but pretty sad for the family.
Rest assured, you really would be doing the right thing by raising it with him. An easy and helpful way of doing this would be to give him a copy of McKays Solicitor’s information brochure about the legal things people should be dealing with when they are going to get married or are entering into a de facto relationship. It deals with a number of issues but also covers “prenuptial agreements”. It is called “Essential legal tips for couples and couples-to-be”. Call Ainsley Minnikin in McKays’ Brisbane office if you would like a copy (or if you have one more than one child two or three copies!).
If you would like further information about "prenuptial agreements" please contact Jennifer Hetherington (Rice) in our Brisbane office or Nicole Cullen from our Mackay office.
You need to check the contract urgently. You probably have a right to claim for an extension of time. If so, do so immediately and follow the contract provisions closely. You might also have some other rights to suspend work or even terminate the contract. Act quickly.
First thing is to talk to a suitable accountant, about what the business may be worth. There can be substantial advantages is using a good business broker, but you have to be careful who you choose. Lawyers and accountants deal with business brokers all the time, so they can help you choose one who will provide the level of assistance and ongoing support necessary to locate a buyer and justify the commission to be charged.
If you would like further information please contact Ian Heathwood in our Brisbane office.
Unfortunately your brother is most likely right. Had you bought the property in your own names and lived there, you would have been entitled to the exemption from capital gains tax for a property used as your principal place of residence. Also, you may still have been entitled to claim most of the CGT exemption for a home and claim some tax deductions for the property’s use as a business premises. Next time, make sure you talk to your accountant and lawyer before you decide what name you are going to buy a property in.
If the wife is a director of the company and the company has traded while it is unable to pay its debts, it is likely that she will be in as much trouble as her husband. That’s why it is usually a good idea to make sure there is only one director of a company which runs a small business. At least that way, the wife’s personal assets would not be at risk to claims for insolvent trading.