Marriage, divorce and your Will
It is not uncommon for an individual to overlook reviewing his or her Will at the time of marriage, divorce or separation. Section 12(1) of the Succession Act provides that a Will is revoked by the marriage of the Will maker. However, if a Will is made in contemplation of marriage then the subsequent marriage of the Will maker does not revoke the Will. 
However, if an individual makes a Will in favour of his or her spouse and then marries that person, the Succession Act provides that the disposition to the person to whom the Will maker is married at the time of his or her death will not fail (i.e. the surviving spouse can receive his or her share under the terms of the Will). Read the rest of this entry »
Is a company in liquidation truly dead?
When a company is placed into liquidation, is it really final? The case of SCW Pty Ltd (in liquidation) [2017] NSWSC 449 recently outlined the circumstances where the liquidation of a company may be terminated by the Court and the company reinstated. 
Prior to its liquidation, SCW Pty Ltd carried on a business primarily by way of investment in four properties and the ownership of two boats. The shareholding in the company was equally held by a husband and wife and their related corporate entities. The husband and wife were each directors of the company. The company was wound up by order of the Court on 11 April 2001 on just and equitable grounds due to ‘irreconcilable differences’ and deadlock between the directors. Read the rest of this entry »
Successful company with storm clouds on the horizon
Company planning is imperative. I recently saw a client of mine who was a director and shareholder in a very successful Hunter Valley company. Let’s call them Company Y. 
Many years ago, my client set up Company Y with his good friend and business partner. They were/are both directors and shareholders in Company Y. When Company Y was established a generic Company Constitution was produced on registration. The Company Constitution was not appropriate for the purposes of Company Y.
Sale of business vs company sale
In this article we will look at the differences between the sale of a business and the sale of a company including a few of the pros and cons for each. 
Firstly, there is a significant difference between the sale of a business and the sale of a company. A business is an enterprise usually engaged in to generate revenue (i.e. the business of selling food or the business of providing accounting services). It is possible for a business to be operated/owned by a number of different entities (such as individuals, companies or trusts). When a business is sold, it is sold from one entity (the owner) to another entity (the purchaser). Usually the sale of the business will consist of the transfer of assets, goodwill, intellectual property, licences, business name, plant and equipment. Read the rest of this entry »
2017 Budget announcements that affect the family law system
The Federal Government has made a number of announcements that will affect the family law system in the 2017 budget. Regrettably, these 
do not include the substantial funding boost that the system needs to remedy the long delays being experienced by litigants in the Courts.
The announcements include:
- $10.7 million allocation to the Federal Circuit Court of Australia, the Family Court of Australia and the Family Court of Western Australia, to engage more family consultants to help the courts deal with cases involving vulnerable families. This is a thumbs up.
- $12.7 million to establish parenting management hearings- a forum to resolve family law disputes between self-represented litigants and which are designed to be a fast, informal, non-adversarial dispute resolution mechanism. The devil may be in the detail, and more information will be needed before further comment. It is unlikely to impact on those families using the Newcastle Registry
Three things to consider when leaving a gift of real estate in your Will
The idea of leaving a specific gift of real estate in a Will appeals to some people. If a specific gift of real estate is going to be given, the following three things need to be properly considered:
- ademption – if a specific gift of real estate is left in a Will but it has been sold before death, the legal principle of ademption provides the gift fails. Even if the sale proceeds were used to buy a new house, the gift will fail unless the Will is drafted to specifically contemplate this.
- mortgages – did you know that under Section 145 of the Conveyancing Act, a mortgage over a property which is specifically gifted under a Will attaches to the gift (unless the Will expressly says otherwise). This means the beneficiary who is gifted the property will ultimately be responsible for repayment of the mortgage unless there is an express intention against this in the Will.
- capital gains tax – while a principal place of residence is exempt from capital gains tax, investment properties are not. A beneficiary who receives a property will take it subject to any capital gains tax liability and this often isn’t thought about until the beneficiary goes to sell the property and is hit with a tax bill.
Superannuation – a protected species
Superannuation – it is to the asset world what the Orangutan, Black Rhino and Yantgzee Finless Porpoise is to the animal world – a protected species. 
The Superannuation Legislation provides clear rules limiting the use of superannuation, and access to it, other than in accordance with its intended use. For example, in the bankruptcy jurisdiction, superannuation is a protected asset, and is not available to creditors.
The Full Court of the Family Court has maintained the status of superannuation as a ‘protected species’ in the recent decision of Mackah & Mackah. Read the rest of this entry »
Commercial lease tenants – tips for avoiding disputes
Disputes between Landlords and Tenants in relation to Commercial Leases occur frequently and can cost both parties significant amounts of money both in losses and legal costs. 
As a Tenant, there are a number of things you can do to minimise the chances of a significant dispute arising and, if a dispute does arise, increase the chances of a positive result.
By following these simple tips, you can drastically minimise the chances of a lengthy and expensive dispute arising; Read the rest of this entry »