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Solicitor or Public Trustee?

SOLICITOR OR PUBLIC TRUSTEE? A will is a legal document that details your final wishes and instructions for the distribution of your assets after your death. While a public trustee is a government-run organization that provides legal services to individuals, including the administration of estates, there are several reasons why you should consider instructing a Solicitor to draft your will and thereafter assist with the administration of the estate. Tailored to your specific needs: A will created by a Solicitor can be tailored to meet your specific needs and goals. This will ensure that your assets are distributed according to your wishes and that your family is taken care of after you're gone; Peace of mind: A will created by a Solicitor will be legally binding and can provide peace of mind that your assets and loved ones will be taken care of according to your wishes. The public trustee, on the other hand, may not have the same level of expertise or knowledge of your specific needs and wishes; Avoid potential complications: A well-drafted will can help avoid potential complications and disputes over the distribution of your assets. A public trustee may not have the same level of expertise or knowledge of the law, which can lead to mistakes or disputes; and Cost savings in the long run: While paying for a will may seem like an additional expense, it can actually save you money in the long run. A poorly drafted will or mistakes made by the public trustee can lead to legal battles and additional expenses, which can add up quickly. Australia has its own set of rules and regulations regarding the fees charged by public trustees for managing estates. In most cases, these fees are based on a percentage of the value of the estate, with a sliding scale based on the size of the estate. The exact fee schedule can vary depending on the state, so it's best to consult the specific guidelines for the state in question to ensure you do not incur any unnecessary fees & charges. Example of Fees In New South Wales the Public Trustee outline their schedule online for various services including drafting of a will, executorship, and deceased estate management. Often, beneficiaries of Public Trustee appointed estate matters have complained about excessive fees, long delays in settlement and poor communication. If you had a choice, which scenario would you choose? a) Engage the Public Trustee to draft a free will, knowing your beneficiaries may be subject to high fees and delays; or b) Draft a will through a Solicitor for a minimal fee, nominate the executor of your choice with minimal or nil fee and faster settlement. A Public Trustee drafted will may save you money initially but will ultimately be funded by your beneficiaries – Example below. Joe Citizen engaged the Public Trustee of NSW to draft a free will. The Public Trustee were noted as the Executors of the Estate. Joe sadly passes away the following year. [...]

2023-02-09T11:28:23+10:00February 8th, 2023|Wills & Estates|

Pikachu caught up in Federal Court matter between Pokémon Company International and Australian gaming platform PokeWorld

Pikachu caught up in Federal Court matter between Pokémon Company International and Australian gaming platform PokeWorld The use of non-fungible tokens (NFTs) in the gaming industry has risen in popularity exponentially in recent years, as it allows for unique digital assets to be bought and sold on blockchain platforms. However, with this new technology comes potential risks, specifically in the areas of copyright and trademark infringement. One issue with launching a game using NFTs is that creators may unknowingly use copyrighted or trademarked content in their game, leading to legal issues. For example, if a game developer uses a popular character or logo in their game without permission, they could be facing a lawsuit for copyright or trademark infringement. The Pokémon Company International, Inc (The Pokémon Company), a subsidiary of gaming giant Nintendo, has obtained a successful interlocutory injunction against Australian crypto company, Pokémon Pty Ltd (PPL). The interlocutory injunction also was successfully obtained against PPL’s director Xiaoyan Liu. The interlocutory injunction came about when PPL and Mr Liu threatened to release a range of Pokémon-themed Non-Fungible Tokens (NFTs) without The Pokémon Company’s permission. Specifically, The Pokémon Company claimed they did not grant authorisation for PPL to use their intellectual property, including images in their gaming software. While the substantive issues in the proceedings are in progress, the interlocutory injunction provides an excellent example of how to act swiftly to protect your intellectual property effectively. The Interlocutory Injunction In Australia, an interlocutory injunction is an equitable remedy, a relief that sets out what someone must do or not do or to stop that person doing something. There are various reasons why an injunction would be available, whenever required by justice, and includes preventing the publication or transmission of information or the use or disclosure of confidential information. In short, an injunction can be interpreted as ‘pending the result of court proceedings’.  An interlocutory injunction needs an initial application to the court, called an 'interlocutory application'. As a result, a court might grant an injunction order before deciding the substantive issues in the court process. Generally, the court may award an interlocutory injunction when it believes it is ‘just or convenient’ to do so. In deciding this, the court will generally ascertain the following: • parties refusing to enter negotiations; and • Does the inconvenience or injury the applicant would suffer if an injunction were not granted outweigh the potential injury a defendant would suffer if the injunction were granted? (Called the “balance of convenience”). The Pokémon Company’s interlocutory application relied on section 234 of the Australian Consumer Law (ACL) to bring the application before the court. In support of its application, The Pokémon Company set out the reputation of the Pokémon franchise, noting its success since its launch. The Pokémon Company further declared that it was worried that a considerable number of consumers would be misled, deceived, or were likely to be misled or deceived into believing that PPL, "PokeWorld," and the NFTs were affiliated with The Pokémon Company [...]

2023-02-07T20:54:06+10:00February 7th, 2023|Cryptocurrency, Intellectual Property|

ACCC to Sweep Social Media to Find Deceitful “Finfluencers”

ACCC to Sweep Social Media to Find Deceitful “Finfluencers” A recent decision by the Federal Court in Australian Securities and Investments Commission (ASIC) v Scholz (No 2) (2022) FCA 1542 has put financial service providers over social media, or “finfluencers”, on notice, with the Australian Competition and Consumer Commission (ACCC) announcing a sweep of social media to crack down on deceitful influencer marketing. Finfluencers A finfluencer is essentially someone on social media who discusses finance and investing, with the concept proving to be extremely popular.  For example, the TikTok hashtag Moneytok, has amassed almost 20 BILLION views. Finfluencers fill a gap in the financial service market; often providing an entertaining, cheap, and fast alternative to traditional financial advisors, who for many are too costly, time consuming and often irrelevant to their personal circumstances.  Such rapidly changing way that financial advice is being delivered presents a challenge for legislators and courts to protect consumer interests, something the ACCC is known to be proactive about ACCC’s Crackdown The ACCC crackdown is concurrent to ASIC requirements from finfluencers to remain legislatively compliant.  Both bodies have regulations to prevent consumers from making an impartial decision which could lead to significant financial harm.  The ACCC focuses on the deceitful marketing aspect, where finfluencers receive undisclosed payments from a product they are promoting, while being unlicenced.  Cryptocurrency is a prime example of how deceitful marketing and financial advice can be combined to manipulate consumers for the finfluencer’s benefit.  The volatility of cryptocurrencies can lead to ‘pump and dump’ scams, where finfluencers will spruik a cryptocurrency to increase trading and then sell their own shares at an inflated price (similarly, ‘wash trading’ can also occur whereby cryptocurrencies is simultaneously sold and bought by the same investor to create misleading, artificial activity). Each year, the ACCC announce a list of areas of compliance they wish to prioritise, and this year the priority is to prevent consumers from being misled or deceived by advertising and marketing practices in the digital economy.  The crackdown is focusing on finfluencer marketing saturated industries such as skincare, parenting, health and fitness, travel, fashion and gaming. The ACCC will probe all forms of popular social media platforms, including Instagram, TikTok, Snapchat, YouTube and Facebook. Several of these social media platforms already have their own rules surrounding payment for advertising, with TikTok for example, requiring all content creators to disclose branded content and taking action when unlabelled sponsored content is shown.  Although social media platforms are advocating for payment disclosure and the eradication of deceitful marketing ploys, government intervention will always be necessary. The Corporations Act 2001 (Cth) (Act) which traditionally governs the practices of businesses and service providers across many industries is now has been used to monitor social media business. Under the Act, financial product advice can be a recommendation, statement of opinion or reporting on either of those things intended to influence a person to make a decision about a financial product.  The key word is “influence”; most of us are [...]

2023-02-07T20:44:28+10:00February 7th, 2023|Commercial & Corporate|
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