Early Intervention

Would it be better when you have a disagreement to be advised of all you should consider before you react.

In our experience the majority of disagreements are unresolved quickly and economically because of misunderstanding the background, motives and whatever else you may not have realised you need to take into account in how to deal with the subject. 


In our experience 80% of the time disagreements are resolved simply by how you discuss the subject with the other party/ies to the disagreement. As well the statistics show 95% of court cases are settled. While that is great  what a shame that all the expense, time and anxiety may have been able to be avoided.

Our practice has had a policy for decades of, what is now popularly called, early intervention. We have lots of experience.

The upside is considerable expense, time and anxiety has been avoided and what is more relationships less likely to be irreparably damaged.

Call us on (02) 9264 3877 for a free 30 minute consultation where we can set you on the right track.

Cooling-Off Traps

Last week we had some anxious moments for buyers for whom we were acting under a cooling off contract.

Our clients negotiated to buy a unit. They needed finance to be approved and even though they were borrowing very little their lender was being peculiarly careful and were quite slow in checking past tax records. It is unwise to exchange contracts without unconditional loan approval and at worst and, exchange under a cooling off is an alternative but recognising they had to pay the agent 0.25% of the purchase price and, if they did not proceed they would lose that. Our clients were persuaded by the seller’s agent and, in this case they had a buyer’s agent, that they should be confident all will be alright. They decided to proceed with a cooling off contract since we managed to arrange 10 business days cooling off so as to give them a better chance with more than usual time to get the approval.

As it turned out the 10 days passed and there was no approval. We were told that 1 more day would do it and we were able to get a 24 hour extension. Fortunately approval came through near the end of the extra day. We have prepared the relevant notice to terminate the contract in case of having little time to take action.

Cooling off has some traps:

•        Usually contracts allow 42 days to complete from the date of the contract and so often preparations to do the usual work on a purchase does not begin until the buyer decides to proceed. That often means 5 days later than normal. Sellers usually refuse to allow 5 extra days to complete.
•        In recent years lenders take the best part of 42 days to be ready to advance the money.
•        As contracts normally provide that the buyer must pay interest, usually 10% per annum, there is the risk that the time lost will end up causing extra expense as a result of this interest.

Planning ahead is important as well as having lawyers who have the foresight and experience to know the traps. For the little extra it costs to have an experienced lawyer, is it not good insurance against extra expense and anxiety that is usually associated with less trained and experienced practitioners to say nothing of the value of that lawyers reputation among his colleagues.

Call us on (02) 9264 3877 and let us tell you what we can do to provide you with worry free experience of one of the most important transactions in you life.

Protect Your Business

Your greatest competitors are often the vendor of your business or your former employees

We are often asked to give advice on both the sale of businesses and on contracts of employment. In our advice we draw our client’s attention to how the value of their business can be severely damaged by among other things:

• The person from whom they bought the business, who if there is no restraint, simply opens up nearby and competes directly for the customers of your business.
• Employees who can, if there is no restraint, simply stop working for you and commence business in competition. Even after you have spent considerable time and effort in training them. As well as, entrusting all of the information about your business to them.

It is important to protect your business against such competition by including suitable clauses in any applicable agreements?  Especially, as it is almost impossible to require such clauses to be included in agreements after they have been finalised. 

In the case of employees, if the employee has worked for you for some time before the subject is raised, it is unlikely you will then be able to implement the kind of terms that you need.

We typically advise that:

• There is no standard "one size fits all" clause;
• Every case is different and clauses must be modelled to suit each particular situation
• The shorter the clause, the greater the risk that the clause will not be of much help.

In our experience “Standard Documents” if they include anything on the subject include just a few short line provisions. We point that out to clients and even show them the type of clause that it refers to and at the same time show the client what is known as a “cascading clause” which is the recommended way to approach the matter. Unfortunately the vast majority choose nothing or at best a short form clause. They feel that a cascading clause will be found to be too challenging by the vendor or the employee. 

Unfortunately, we live in an age where both businesspeople and employees may look to make money out of the intellectual property or goodwill of others. Even where they have sold the business involved or are still employed by that business. 

The need to protect your goodwill and intellectual property, including customer details, is of great importance. Failure to protect these items can cause long lasting, if not permanent damage to one’s business. The High Court recently had the opportunity of considering this subject. The effect of its decision endorsed absolutely the approach we have taken with our clients for many decades.

Even if you have not included suitable terms in existing agreements, it will be worth discussing your position with ourselves. For two reasons:  

• It may well be possible to improve your current position to some extent. 
• You should be well prepared for the next time you need to implement protection for your business in the above circumstances.

 If the above has any relevance to your affairs, please do not hesitate to call us.

Mediation and Other Ways to Resolve Differences with Less Pain and More Gain

It has been the policy and practice of this firm to always consider ways of resolving differences between parties and continue to do so throughout the progress of cases we handle.

Life and its complexities have developed in every way and in every area of relationships and business. As a firm we have maintained our commitment to searching for ways to solve problems in the quickest and most economic way. We have continued developing and refining our skills.

Victor Berger has been accredited by mediation training and referral organisations ACDC and LEADR. He has been an executive member of the New South Wales Chapter of LEADR. As well as concluding a Masters in Law which included studies in International Commercial Dispute Resolution and Advanced Mediation.

Harry Freedman has been accredited by ACDC and as a Family Law Mediator.

Both continue ongoing education. They have also been instrumental in bringing judicial officers together to discuss expanding the role of mediation in the court system.

The result has been that:

Victor Berger has been able to use his skills in many areas including Commercial and Business disagreements;

Harry Freedman has also done the same in Family Law matters. Including many cases where colleagues have requested him to mediate between couples for whom they act.

The great benefit of mediation has been increasingly recognised across almost every industry and social group. State and Federal Attorney Generals now have this high on their agenda as a means of providing speedy and cost effective justice. The use of mediation is found in business, unions and the military services. As well as religious, community, social and indigenous organisations.

When compared to court proceedings, mediation can achieve significant goals without having conditions imposed by a third party. These achievements are also often made whilst preserving the relationships of the people involved. And all that on top of considerable savings in time and expense.

Mediation is available from a vast variety of people with an extraordinary range of skills. The majority, however, have no legal training. At MBBF, we have had the opportunity to exchange knowledge and experiences with a very wide range of mediators. 

This has led us to believe that legal training is, in fact, a very important ingredient in the majority of mediation cases. Trained lawyers are often better placed to:

• Quickly identify authentic obstacles to negotiations.
• Assess areas of genuine disagreement which are based upon misunderstood principles.
• Offer solutions which include services from non-legal entities, such as, medical and social  practitioners.

In our experience, for the majority of cases, the parties in disagreement are comparing their potential solution with that which a judicial body might deliver. They often need to be reminded of the pitfalls and uncertainties of legal proceedings, as well as the potential costs and delays involved.

At MBBF, we are glad to receive any enquiries, free of cost, regarding the potential for resolving disagreements of any kind. Even if you do not feel such disagreements involve legal questions.

All Creatures Great and Small ….

Yet for some reason most people never turn their attention to them…

If your family unit includes a furry, feathered or scaly member then you are counted amongst the 63% Australian households caring for a pet. There are over 58 million pets of various species throughout Australia and 91% of Aussies say they feel very close to their pets. Many Australians consider their pets a beloved family member and some think of them as children.

Regrettably we can forget about our pets when it comes to our own mortality. Maybe it is just too sad to think of parting from our beloved furry companions or perhaps its just too hard to know what to do. Unfortunately it is not as easy as just leaving money in our Wills in our pets names. But there are ways to provide financially for our pets care. In many jurisdictions around the world, including Australia, pets are not allowed to be named as beneficiaries in Wills because only people and organisations can be named.

If you want to ensure your beloved pets are looked after, once you pass away, it is recommended that you organise someone who has committed to providing a good home and speak to us at MBBF so that we can tell you how to do it. We all love our pets, but what will happen to them when we are no longer around?

Do I Have To Return My Engagement Ring?

In the event of a marital break up the property of the parties needs to be divided according to the principles which are set out in the Family  Law Act. A question which arises from time to time is whether or not an engagement ring is part of the property pool or whether it is excluded.

The matter is being considered by the Family Court of Australia in the marriage of Beneke. In that matter the husband and wife were aged 77 and 42 respectively. They  met  in 1992 while the husband was a patient of the hospital where the wife worked as a nurse. They were engaged two months later and married a few months after that. Separation occurred in less than a year. There were no children of the marriage and the husband had assets of approximately one million dollars.

In that matter the Court considered that the evidence suggested that certain gifts including the engagement ring were gifts made without any  preconditions  and in those circumstances the Court did not consider it would be just and equitable for the wife to return the gifts including the engagement ring.

Other findings were made by the majority of the Court including gifts which could also be treated as property within the meaning of the Family Law Act and in circumstances where gifts made prior to marriage were often not  included in a judgement due to their comparatively small value.

In the case of Jackson v Jackson the issue of returning the engagement ring was also considered. In that case the circumstances were slightly different due to the fact that the parties had parted during their honeymoon. The Court held that in those circumstances it was just and equitable for the wife to return not only the home but the engagement ring given the fact that the marriage ended after such a short duration.

I Want To Have My Dead Husband’s Baby

 

Ms Jocelyn Edwards approached us in August last year to assist her being able to get access to her late husband’s frozen sperm for the purposes of being able to undergo an IVF program.   Jocelyn’s husband Mark died as a consequence of a work place accident on the day before the couple were to sign the final documents to commence an IVF program. This extraordinary lady hours after being told the horrible news that her beloved husband had died, had the strength of character and intelligence to enquire as to what could be done to preserve his sperm and on her own was able to convince a Senior Supreme Court Judge to issue an Injunction empowering Doctors to extract the sperm from her husband’s body and to keep it preserved. Notwithstanding what would seem to be a clear process to put into effect what the parties had obviously been planning for quite some time they were now faced with a legal document entitled and known as the Assisted Reproductive Technology Act of 2007(ART Act).  This Act not only prohibited the use of Mark’s semen (referred to as a gamete) without his written consent but also did not even allow a Court of Law to exercise discretion in unusual situations.  The evidence was clear that Jocelyn and Mark had even contemplated being able to use his sperm and proceed with the IVF program in the event of his death, after he became concerned that he might have been suffering from some illness.  Advice from Senior Counsel was still to the effect that although there clearly was an intention to be able to proceed with the program after one party’s death, there was no document in writing. The law in this area is unusual in that different States and Territories have different pieces of legislation.  An IVF program could not be undertaken in NSW in the absence of Mark’s written consent.  The firm proceeded with the Court action and was able to persuade the presiding Supreme Court Judge to simply allow the sperm to be given to Jocelyn who was the Executrix of her husband’s Estate. This will allow Jocelyn to consider entering into an IVF program outside NSW.  Needless to say after many months of grieving and anxiety, we have assisted a remarkable woman in being able to choosea path, which will offer the possibility of fulfilling a long held dream. This case has many consequences for all in the community.  It is important that it was recognised not only by the legal establishment and by the media as well, since it received extensive coverage. As a consequence we are recommending many of our clients who may find themselves in a situation where the possibility of offering parts of their body for use to spouses and members of family, should now be incorporated in their Wills.  If you can perceive such a possibility in your own circumstances, your Will ought to be amended so as to be able to clearly provide the written consent that is necessary in being able to offer the use of parts of your body following your death. As always, please feel free to contact MBBF to discuss the matter.

Personal Guarantees - Do you ask for them or only get asked for them?

Do you have an SME (small to medium enterprise)? Do you have an extensive list of companies to whom you supply goods and/or services? Is your credit application satisfactory and does it cover your current business needs? 

In today’s often-volatile commercial environment getting new business and customers is tough. Getting those customers to pay overdue bills could be even tougher. A good credit application including  terms and conditions is essential for the smooth functioning of recoveries for your business. What you may not know is that a personal guarantee obtained for a trading account is an extremely valuable tool in recovering outstanding debts. You may deal with a company but often extracting money from a company can be an expensive and lengthy exercise. Experienced individuals are able to cover their tracks so that they are rarely personally liable. 

Ensuring a personal guarantee is in place signed by an individual, whether they be a director of the company with whom you deal or another individual, ensures that if the debt requires collection you are at liberty to pursue not only the company but the guarantors as well. You may not know that a personal guarantee outlives the resignation of a director and in fact even if the company is placed in liquidation or deregistered you can still rely on the guarantee to commence legal proceedings for the recovery of the debt. 

Your business is too important not to consider implementing this strategy. MBBF drafts agreements, terms and conditions including personal guarantees on a regular basis .

High Court Ruling on Malaysia Immigration Plan Announced.

See article in Sydney Morning Herald http://www.smh.com.au/national/high-court-sinks-asylum-strategy

Leaving It All Behind

Have you really turned your mind to what happens when you live happily ever after…… 

The importance of estate planning cannot be overstated. We may be leaving it all behind, but there’s work ahead for our families, friends and executors in distributing our worldly goods when we die. We read a lot about legal Wills and how important they are. But we do not often read about what happens after someone lives happily ever after from a legal aspect. Clients generally have a reasonable understanding of what amounts to a Will, however many are not aware of what Probate is, or when it is necessary. If you have a Will your nominated executors are responsible for ensuring that your wishes are carried out. In the vast majority of cases, this means dealing with your assets. The most common assets in a typical estate are bank accounts, shares, motor vehicles, real estate, superannuation, life insurance policies and personal possessions. Your executor’s job is to have these various assets sold, or transferred into the name or names of the beneficiaries listed in your will. 

Now comes the hard part ……

The various Financial Institutions, bodies or government departments that control the title to those assets are required to be contacted and request that they transfer the assets either into the name of the executor, if the asset is to be sold, or directly into the name of the beneficiaries. This is when engaging a Solicitor will assist the Executors of an Estate ensure all their responsibilities, obligations and legal responsibilities are met.In some cases, the controlling bodies will oblige after you send them a copy of the Will and death certificate. However in the majority of cases, the controlling bodies will ask for a Grant of Probate from the Supreme Court in your State before they will transfer the assets. 

The type of asset and whose name or names are on the title of the asset will determine if a Grant of Probate is required. The reason they ask for this document is to protect themselves against being sued by someone who may have a financial claim of some kind against the estate. It is a ‘due diligence’ process designed to ensure that your estate is properly administered. 

So what exactly is required to obtain a Grant of Probate? The executors named in your will are required to make a formal application to the Supreme Court in your State for a Grant of Probate. The application consists of a number of completed forms and affidavits (sworn statements), your Will, the death certificate, and a copy of the death notice placed in the newspaper. As each State has different requirements, the format, content and number of forms for the application vary. Engaging a qualified Solicitor in this area is recommended as they will be familiar with what documents are required to be prepared and ensure all relevant information required is submitted with such application.The Probate Registry with the Supreme Court is the area that would process your application and they are extremely pedantic about the accuracy and content of the forms. A misspelled name is sufficient to cause the rejection of an application and Requisitions then being raised. 

Once the Grant is issued, your executors will have the authority to deal with your estate. The executor has the power to step into the shoes of the deceased and act accordingly to ensure the Will is complied with. Once Probate is granted the Executor has a duty to uphold the Will and will be legally responsible and personally liable for what occurs during this process, hence why engaging a Solicitor is highly recommended to leave no stone unturned. When someone has passed away, the last thing you need is more stress and grief of dealing with probate. At MBBF our solicitors can advise you on all aspects of estate administration and probate in NSW. We will be able to work with Executors and beneficiaries of the Will throughout the probate process to ensure the assets are identified, any claims on the estate are established, taxes are paid and that the assets are correctly distributed among the beneficiaries.

The End Of Periodic Detention

Up until September 2010 a person convicted of a criminal offence which might have resulted in a short period of detention, could request that the sentence be served in the form of periodic detention which allowed many convicted people to maintain family and work relationships and serve a sentence at times of their choosing, generally on weekends. 

Due to the fact that there were many breaches of periodic detention orders and the ability to administer the program proved to be too difficult, the Government has revoked the concept of periodic detention and in its place introduced what is known as an “Intensive Correction Order” (“ICO”).  

This option has become available in NSW since the 1 October 2010.This order can be made to Defendants who are convicted of offences, which may result in imprisonment for a period of not more than two years. The Court may direct that the sentence is to be served by way of an intensive correction in the community rather than full time custody at a jail. There is no minimum length for an ICO although the maximum length can be no greater than two years. No parole period will be set. To comply with an ICO an offender must comply with strict conditions which include the following:-

(a) a minimum of 32 hours community service per month;
(b) participate in programs addressed to his or her offending behaviour as directed;
(c) be subject to drug testing;
(d)comply will all reasonable directions by the appointed supervisor.

It might also include and be subject to electronic monitoring,complying with a curfew, being subject to alcohol testing, be subject to random unannounced home visits and other related restrictions and/or requirements. An ICO can be considered by a Court when considering a sentence of an imprisonment of two years or less and that the offender is not being sentenced with a prescribed sexual offence.  To be considered as a suitable person for an ICO, a suitability assessment needs to be conducted.  The assessment will cover factors such as:- i. the offender’s age; ii. the offender’s criminal history; iii. any risks associated with managing the offender in the community; iv. the suitability of the offender’s accommodation including the  potential impact of an order on co-residents (children); v. whether there is a likelihood the offender may commit a domestic violence offence; vi.  whether or not the offender has a drug or alcohol dependency; vii.  whether the offender has a physical or mental health issue; The community will need to wait and see before it can determine the success of such programs however we believe it is an encouraging and enlightened approach to dealing with convicted felons rather than simply sending them to full time custodial sentences and overcrowded jails where the rate of recidivism is yet to decline significantly. Any criminal issues that might affect you or your family, please feel free to contact MBBF at anytime.

Disclaimer

The information you obtain at this site is not, nor is it intended to be legal advice. You should consult a Lawyer for individual advice regarding your own situation.

Milne Berry Berger & Freedman’s Contributions to the General Community

Our firm and its employees also contribute to the general community by participating in various organisations and activities including:

a) Duty solicitors at the Local Court;
b) Duty solicitors at the Family Court;
c) On the panel for Jewish care;
d) Participating and having membership with Rotary;
e) The members of the Gladesville Chamber of Commerce;
f)  Members of the Law Council, Law Society, City of  Sydney
Law Society,
g) Pro bono panel of the Law Society,
h) Board member of the MTC non profit organisation; and
i) Executive of Ryde Business Forum.

Our People at Milne Berry Berger & Freedman.

Elizabeth Street Staff

Victor Berger - Partner Harry Freedman - Partner Mittu Gopalan - Partner Lewis Rupell - Solicitor Anne-Marie Doueihy - Solicitor Simone Checchia - Solicitor Adam Baldwin - Practice Manager

Hyde Park Staff

Mittu Gopalan - Partner

Gladesville Staff

Daniel Mifsud - Solicitor

Milne Berry Berger & Freedman on Twitter

Milne Berry Berger & Freedman are now on Twitter. We're encouraging all our clients and friends to follow us. 

You can find our Twitter account at http://www.twitter.com/mbbfsolicitors.