1. Finance

Before searching local property listings, you should meet with your mortgage broker and have your finance approved.  This will make it much easier during the settlement process and avoid any delays in settlement because of delays in finance approval.

 

  1. Using a Buyer’s Agent

Real Estate Agents work for Vendors to help them sell their property.  However, if you are engaging a Buyer’s Agent to help you locate a property or to bid on a property for you at auction, be sure to have their agreement reviewed.  Know what fees, terms and conditions you are signing up for.

 

  1. Reviewing the Contract

Before bidding on a property at auction or signing the contract, we recommend you have the contract reviewed by a Licensed Conveyancer or Solicitor.

This is to ensure that the contract does not have any clauses that may be detrimental to you and so that you are aware of any conditions that you will be subject to when purchasing the property.

Some properties purchased by private treaty will have a cooling-off period of anywhere between 3 and 10 business days (this is something that your conveyancer or solicitor can negotiate for you).  During this time, your solicitor will be able to negotiate with the Vendor’s solicitors and you will be able to arrange an Inspection of the property.

A cooling-off period is a set number of days after entering into the contract in which you can decide to proceed with the purchase of the property or terminate the contract.   In New South Wales, this period is usually five business days long and if you decide to terminate the contract you will be liable for a termination fee to the seller (0.25% of the purchase price).

Properties purchased at auction do not have a cooling-off period. You should conduct all enquiries and investigations well before the date of auction, so you have enough time to negotiate and make a decision.  You should also look into arranging a Building and Pest Inspection and/or a Strata Report prior to the auction.

Once the cooling-off period ends, you will officially enter the “post-exchange” period.

 

  1. Post-Exchange

During the post-exchange period, your solicitor/conveyancer will be making arrangements with the Vendor’s solicitors, your bank, the real estate agents and any other interested parties to make sure that settlement takes place on time.

Your representative will ask for the following details which you should provide straight away to avoid delays in the settlement process:

You will need to meet with your solicitor or conveyancer or arrange an appointment with a certified Verification of Identity Agent (Australia Post or ZipID if your solicitor/conveyancer is registered).  You will need to have the following documents available to be certified:

If you are unable to provide any of the documents, you can speak with your solicitor/conveyancer about the options available to you.  You should also notify your solicitor/conveyancer if you are a Permanent Resident and have recently travelled out of Australia.

From this stage, there is very little contact that will need to take place between you and your conveyancer until the days leading up to settlement.

Rest assured, radio silence does not mean that your matter is not being worked on.  During this time, your solicitor/conveyancer is planning for settlement to take place, negotiating with the Vendor’s solicitors and your bank to ensure that all takes place smoothly.

You will not need to meet with the solicitor/conveyancer thereafter, as the only further contact made by your representatives will be the long-awaited phone-call that you now own the property.  You will then need to contact the real estate agent to collect the keys to the property.

You should engage a conveyancer/solicitor who has expertise in this area so that you do not run into any situations where your questions remain unanswered.

 

  1. Settlement

Settlement is a transaction that takes place at a venue nominated between parties.  You will not need to attend. 

Once the property has settled, the Certificate of Title is handed to your mortgagee.  If there is no mortgage on the property, the Certificate of Title will be handed to your solicitor/conveyancer on settlement.  If your solicitor has safe-custody facilities, you may want to think about storing the Certificate of Title with your solicitor.  If not, make sure you store the Certificate of Title somewhere safe.

 

 

Australian Treasurer, Scott Morrison recently released our third budget which will result in number of changes if the Liberal Party are re-elected next year and the budget is in fact implemented. The changes aim to put the Government in surplus for the first time since 2008 but this does not necessarily mean significant cuts. In fact, the majority of middle-class working Australians are set to benefit from the new budget. Below is a rundown of how the new budget might affect you:

 

Taxation

The government is planning to reduce taxation for lower and middle-income Australians and families by increasing the taxable threshold income for low-income tax offset (LITO) from $66,667 to $90,000. This means that more Australians will be taxed less.

A limit on cash payments will be introduced with the new budget in an attempt to crack down on those attempting to avoid tax payments. From July 2019, there will be a limit of $10,000 for cash payments for goods and services.  It is anticipated that this limit, along with a Taskforce dedicated to targeting areas of under-reported income, will result in an additional $5.3 billion dollars of tax coming into the budget over the next 4 years.

Pensioners

$227 million dollars has been allocated to the Pension Work Bonus Scheme which allows pensioners to earn more money without incurring any deductions to their pension amount received. Pensioners will also be able to mortgage their home under the Pensions Loan Scheme.

Welfare Recipients

Unfortunately, welfare recipients will be adversely affected by the new budget with the government aiming to save $373 million by cutting welfare payments. Additionally, the government is increasing the waiting period from 3 years to 4 years for new migrants attempting to obtain welfare benefits. This will likely save another $200 million dollars.

Superannuation

In order to maximise superannuation funds available to working Australians, the government plans to introduce a 3% cap on fees for any account that has less than $6,000 in it. It is very common for individuals to accumulate a number of different superannuation funds over their work lifetime which may be confusing and difficult to keep track off. The government is planning to introduce an initiative where all inactive accounts with less than $6,000 will be transferred to the ATO to be ‘reunited’ with owners.

Mental Health

The government intends to increase funding for mental health services by $338 million dollars, focusing specifically on suicide prevention, research, and accessibility for rural and older Australians. This will include more support for people discharged from hospital following suicide attempts, and more funding for hotline services and awareness campaigns.

Small Businesses

In the 2015-26 budget, the Government introduced an Instant asset write-off initiative where business owners could write off up to $20,000 for any asset purchases they had bought and used, or installed to use in that year. The new budget has extended this initiative for another 12 months until 30 June 2019.

Road Congestion

The government has allocated $24.5 billion dollars to transport projects with the aim of reducing congestion. This includes work on roads and rail. As well as potentially decreasing our morning commute times, these projects will generate hundreds of new jobs.

Independent Students

If you are a student from a regional or rural area of Australia, who is living away from home to study at university, the new budget will make access to Youth Allowance payments easier. These payments are based on the income of the student’s parents. By increasing the threshold amount of parental income to $160,000, more students will be eligible for these payments.

Medical Assistance

Treatment and medication, especially for life-threatening, can be extremely expensive. To combat some of these costs, the government is adding $1.4 billion dollars to the budget over the next 4 years. This will be targeted at medication for a number of illnesses including relapsing-remitting multiple sclerosis, spinal muscular atrophy, and breast cancer.

As well as this, the Government is focusing on increasing access to doctors to those in rural areas by introducing 5 new medical schools in the Murray-Darling region, and creating a new junior doctor training program in remote regions. An additional $84 million dollars will go to the Royal Flying Doctor Service who will begin delivering dental and mental health services for the first time.

Security

The government is setting aside money in the budget to ensure the safety of Australians. This will include strengthening airport security, managing biosecurity risks from the import/export of agriculture, and continuing Operation Sovereign Borders, an initiative introduced to combat people smugglers.

 

If you have any questions regarding the budget, please do not hesitate to contact us on (02) 8917 8700. Alternatively, visit the visit the Australian Government’s Budget website at https://www.budget.gov.au/index.htm. 

Parliamentarians’ citizenship status has received vast amounts of media attention this year, with the High Court has ruling Australian Deputy Prime Minister Barnaby Joyce, along with a number senators, ineligible to sit in Parliament. This comes as a result of their respective dual citizenships, which were a contravention of s 44 of the Constitution.

This section prohibits a person who is a subject or citizen or is entitled to the rights or privileges of a subject or citizen, of a foreign country from sitting in the Senate or House of Representatives. Thus, if you are a dual citizen of Australia and another country, you are ineligible to sit in Parliament.

The High Court’s view:

According to Sykes v Cleary (1992), successful renunciation of citizenship from the foreign country is not strictly essential in order to sit in Parliament. Rather, the majority held that the appropriate test is whether the person has taken all reasonable steps to renounce the foreign citizenship. This test acknowledges that renouncing citizenship can be a lengthy and complex procedure which is subject to varying requirements depending on the country.

Mason CJ, Toohey and McHugh JJ considered that when determining whether ‘reasonable steps’ had been taken the Court may take into account the level of connection between the person and the foreign state, the foreign state’s requirements for renouncement and the circumstances of the individual. For example, the UK requires a signed and witnessed application, proof of Australian and British citizenship, along with a fee in order to renounce British citizenship. It is likely that ‘reasonable steps’ in this case would involve completing this process, potentially irrespective of whether it has been formally approved.

Dean and Gaudron JJ, who dissented, took different approaches as to what would constitute ‘reasonable steps’, and the application of the test has remained largely uncertain. To add to the ambiguity, there is still debate as to whether all reasonable steps taken to renounce foreign citizenship must occur before the nomination date for election, and if so, how far in advance.

The Current Situation:

In an effort to avert the citizenship crisis, a new government initiative required both Senators and Members to make a declaration as to their citizenship, their parents’ citizenship status and, if applicable, any steps they have taken to renounce dual citizenship. Following the deadline for disclosure closing, a number of MPs may face referral to the High Court given their questionable citizenship status. There is a pattern of Parliamentarians attempting to renounce their foreign citizenship close to the closing date for nomination for election, and only receiving confirmation after nomination. If such referrals are made to the High Court, it is likely that they will have to consider the time frame in which reasonable steps must be taken.

Please contact Freedman and Gopalan Solicitors today on 02 8917 8700 to see how we can help you in your separation.

The euthanasia debate has picked up steam in Australia once again, with both NSW and VIC voting on euthanasia bills in last month.

New South Wales

In New South Wales, the Voluntary Assisted Dying Bill 2017 (NSW) recently failed to pass in the Upper House with 20 votes against and 19 in favour. The Bill proposed that those over 25 were eligible to be assisted in ending their lives if they had 12 months or less to live and where there is severe pain.

The Bill allowed a doctor to prescribe, prepare and supply a voluntary assisted dying substance that could be self-administered, or if the patient was unable, administered by a doctor. Numerous protections and requirements existed to avoid an abuse of the process, some of which included:

Victoria

In contrast, the Voluntary Assisted Dying Bill 2017 (Vic) was just approved by both the Lower and the Upper House, and is set to take effect in 2019 pursuant to the proposed amendments being ratified in the Lower House.

Key differences

The minimum requirements for medical practitioners that prescribe and/or administer the drug are subject to stricter guidelines in the Victorian bill, with a minimum of 5 years registration post-fellowship or vocational registration.

The Victorian bill also put in place a further safeguard as a two requests must be made by the patient at least 9 days apart, and a permit must be obtained from the Secretary of the Victorian Department of Health and Human Services. Finally, the Victorian Bill establishes a Voluntary Assisted Dying Review Board to monitor and review the functions carried out under the proposed legislation as well as provide reports to Parliament regarding operation and potential improvements.

So what does this all mean?

If the formalities regarding the amendments are ratified, the Victorian Bill may take effect as soon as June 2019. From this point on patients suffering from terminal illness, with little time left and severe pain have the ability to end their life.

National MP Trevor Khan, who introduced the private members’ bill in NSW has vowed to “never give up the fight”. If a bill on voluntary euthanasia is once again put before parliament, it is likely that a close scrutiny of the safeguards in place in Victoria will lead to heightened safeguards in any NSW bill.

In the last decade, Australia has seen a significant increase in overseas migration and this in turn results to the migrants inviting their parents and relatives to visit them in Australia.  Whether it be for studies, business or to start a family, more expats from the Indian sub-continent are calling Australia home than ever before.

Naturally it is common for expats to invite their parents and relatives to visit them in Australia.  Even though you have always intended to ensure that any visit to Australia is a remarkable experience for them, what one fails to realise is the importance of having the visitor obtain a local travel insurance.

In our legal practice we regularly come across cases where people are either left out of pocket or are caught short due to inadequate travel insurance because of the insurance coverage they had obtained from their country of origin.

Things to look out for:-

  1. It is imperative that you are aware of the type of cover that you are signing up for your visitors, parents or people you are sponsoring or requesting to obtain insurance coverage for.

 

  1. If people travel to Australia without medical insurance, you then face the risk of attending to paying a hospital bill or a medical bill out of your own pocket.

 

  1. If travel insurance is in fact obtained from the country of origin to cover the entire length of stay/visit in Australia, kindly peruse the terms and conditions of that relevant insurance coverage because in most scenarios our client’s relatives are invariably not covered for all the medical treatments that they have in fact undertaken whilst they holiday in Australia. This also means that apart from having to pay a humungous bill in Australia privately, it is only after you pay these invoices that you are able to return to your country of origin and lodge an application requesting for it to be reimbursed. In addition and in most cases, you will not be able to recover the entire reimbursement of the entire invoice.

This would certainly give you the peace of mind and also the ability to enjoy your holiday to the maximum.

For starter, we believe it is a must for all travellers to ensure they are adequately covered for the entire length of their visit to Australia. We also believe it is imperative that you are aware of the type of cover that you are signing up for, and what all in fact covered by the insurer.

Inadequate consideration to either of the above may result in you experiencing significant financial heartache and an unwanted medical debt which you are felt to pay.

Accordingly, we would strongly recommend and advise that you proceed to ensure and read the Terms and Conditions in relation to any Travel Insurance coverage that you obtain. More importantly we strongly recommend that you proceed to obtain a local travel insurance coverage that is best suited to the travelling party’s needs, requirements and length of stay.

If you have any questions in relation to travel insurance, or insurance in general, please feel free to contact us on (02) 8917 8700.

Recently, Prime Minister Malcom Turnbull announced a postal plebiscite on the issue of same-sex marriage, and you may be wondering to yourself how exactly this will affect you and what social changes may come about as a result.

A plebiscite is a vote put out to the public by the government on an important public issue, as a way for them to gain an insight into the public’s views. It is relatively uncommon with Australia’s last plebiscite occurring in 1977 on the issue of our national anthem. In this case, the issue is same-sex marriage and whether or not it should be legalised in Australia. Given that this is such a prevalent issue which has been debated relentlessly throughout society, a plebiscite appears to be ground-breaking in Australia’s progress towards marriage equality. However, there are a few aspects of this postal plebiscite that distinguish it from voting as we know it in Australia and questions its effectiveness in enacting change.

Voluntary Voting

Firstly, while anyone who is registered on the Commonwealth Electoral Roll is eligible to vote, the vote itself is not compulsory and no penalties will be issued to people who choose not to vote. This means that the results of the vote may not be indicative of the entire population and their opinion. Further, given the nature of postal votes, there is also no guarantee that someone else has not filled in another person’s ballot.

Legal Implications

The results of the vote is not in itself, legally binding. Instead, the government has stated that a ‘Yes’ vote will simply mean that they will allow a private member’s bill to be introduced to the House of Representatives. This bill would then have to undergo the process of a normal bill, with discussions and possible amendments, and there is no guarantee that it will be accepted by the Senate or Governor-General and become law.

High Court Challenge

There has been arguments that the plebiscite itself is against the Constitution in the way it is being funded and the information it is collecting. Several challenges have been put out and the High Court is set to hear and decide on them a week before the votes are due to be posted out. There are several key issues that will be determined:

While many marriage equality advocates, including former High Court Judge Michael Kirby, are opposing the postal plebiscite and its effectiveness, if the High Court does not deem it illegal and allows it to go ahead, it may be beneficial to get the votes of as many eligible Australians as possible. Discussions in Parliament from the introduction of a private member bill is a progressive step towards equality compared to Parliament’s approach in the past.

To vote, ensure that you are enrolled by Thursday 24 August 2017. The postal votes will start being sent out from Tuesday 12 September 2017 (if it has not been deemed illegal by the High Court). All forms must be returned by Tuesday 7 November 2017 with the results being released on Wednesday 15 November 2017.

If you have any queries relating to issues featured in this case, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

Difficulty in understanding and communication has always been an expected part of travelling overseas and for many, this poses no great threat apart from some potential frustration. For Dutch teenager Vera Mol travelling in Spain however, a misunderstanding while participating in bungee jumping resulted in her jumping before she was properly secured, and plunging to her death. Apparently Mol had interpreted “no jump” as “now jump”. Her instructors are now facing the possibility of gaol time for the offence of gross negligence manslaughter.

Manslaughter is essentially murder without any ‘malice afterthought’ (i.e. there is no mens rea). There exists two forms of manslaughter – voluntary and involuntary. Gross negligence manslaughter is a form of involuntary manslaughter, where no intention to kill exists. It requires the existence of a duty of care and a breach in this duty, as well as gross negligence. In most jurisdictions, a very high level of negligence is required to warrant gross negligence manslaughter. In addition, an omission (or failing to do an act) can be a sufficient form of negligence.

The Spanish Court of Cantabria had ruled that the two bungee instructors and the operating company were subject to criminal liability as a result of Mol’s death however, the company appealed stating that the death was an accident caused by Mol jumping prematurely. In an unexpected turn of events, the Spanish Appeal Court has ruled the operators guilty of gross negligence manslaughter, stating that they erred in not checking her ID and in their choice of words. Mol was only 17 years old at the time of the incident and bungee jumping requires participants to be 18 years old, unless they have guardian permission. The Court also indicated that the operators should have used the phrase “don’t jump” rather than “no jump” to avoid the misunderstanding in communication. It emphasised that having known and admitted to having poor English skills, the operator should have recognised that his English was insufficient in instructing foreigners in “something as precarious as jumping into the void from an elevated point”.

Further, the operating company were at fault in not obtaining the necessary permits and installing the required security measures for such jumps. In accordance with Spain’s regulations, the bridge on which the jump had occurred was not permitted to be used for bungee jumping at all. Given these errors, the Court believed gross negligence manslaughter a suitable sentence and the two operators now face between one to four years of gaol time.

If you wish to discuss any legal queries relating to issues featured in this case, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

 

Prenuptial Agreements - The Seatbelt for Any Relationship - Freedman & Gopalan

Are you getting married soon? If the answer is yes, then undoubtedly you will have so much to do in the lead up to the big day. You have to choose the perfect dress, a memorable venue, delicious cake and the rings. However, many couples will not have a lawyer on their wedding to-do-list. The harsh reality is that 1 in 3 marriages end in divorce in Australia. While it may be highly unromantic or alarming otherwise to be discussing and negotiating prenuptial agreements, but the sooner you do, the better it is. It will eventually save you when the due time comes to distribute the assets.

Long gone are the days when a prenuptial agreement was a term confined to celebrities and power couples.  Nonetheless, young couples who are getting married, with a limited amount of assets and intending to start a life together, are usually exempt from a prenuptial agreement. In the event that both parties possess a significant amount of assets before entering into a marriage, a prenuptial is highly recommended in that scenario.

What is a Prenuptial Agreement?

A prenuptial agreement (‘prenup’) is a legally binding financial agreement entered between two people in a relationship who intend to wed or live in a de facto relationship. In Australia, prenuptial agreements are known as Binding Financial Agreements (BFAs). The document confirms:

Due to the fact that prenuptial agreements are generally attached to a social stigma, many Australian couples do not consider it before they tie the knot as research indicates only 14% of Australian engaged couples have signed prenuptial agreements. Prenuptial agreements are the seatbelt to any relationship, especially when you consider the fact that every third marriage in Australia potentially ends in divorce according to the Australian Bureau of Statistics.

If you have any questions about an existing prenuptial agreement, or you'd like to consider entering into a prenuptial agreement, give us a call on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP! 

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