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So far Salerno Law has created 40 blog entries.

What are Cryptocurrencies?

With the meteoric rise of Bitcoin over the last four years, and the hype around the seemingly volatile price swings leading to massive gains and losses, crypto newcomers often ask, “what are cryptocurrencies?” The term “cryptocurrencies” is used to describe digital tokens or coins that are often used as a means of peer-to-peer payment or within a particular digital ecosystem. The space grew in popularity after the 2008 Global Financial Crisis (GFC) which saw financial institutions around the world struggle, along with governments and central banks introducing a raft of stimuli in an attempt to keep countries and economies afloat. In October 2008, and at the peak of the GFC, a pseudonymous person called Satoshi Nakamoto posted the whitepaper titled, “Bitcoin P2P e-cash paper”, which provided the foundation for the creation of Bitcoin - a decentralised digital currency without the need for an intermediary. The first Bitcoin transaction subsequently occurred on 3 January 2009. There are now more than 11,000 different digital tokens and cryptocurrencies actively traded around the world. From small beginnings, the total market capitalisation for cryptocurrencies is now in excess of $2 trillion, with the average daily volume of trade around $100 billion dollars. Are all cryptocurrencies the same? It is important to note that not all cryptocurrencies are the same. The cryptocurrency ecosystem is diverse with tokens and coins serving many different purposes. Given the broad extent of applications, we have outlined the top five categories of cryptocurrencies, however, as the space grows, more categories and use cases will arise. 1) Stored Value Coins These cryptocurrencies and digital assets are often purchased by investors on the basis that the cryptocurrency or token will increase in value over the long term. In a traditional investment sense, the most common example outside of cryptocurrency is gold. For cryptocurrency, Bitcoin is the most popular and well-known cryptocurrency akin to a stored value, particularly due to its high demand and limited supply. 2) Ecosystem These cryptocurrencies often represent a decentralised financial ecosystem, for example in the form of a blockchain, that support other cryptocurrencies and token. These blockchain ecosystems are similar to how a Microsoft Windows or Apple Mac OS operating system allows users and third parties to build and run applications on their platform. Ethereum is prime example of this, and facilitates the creation of smart contracts, decentralised applications and other cryptocurrencies within its ecosystem via the Ethereum blockchain. 3) Stablecoins Stablecoins are cryptocurrencies that are pegged to a fiat currency or an asset. By its name, these cryptocurrencies are touted as being “stable” in value as compared to other types of digital currencies. The most common stablecoin is USD Tether, which is pegged one-to-one to the US dollar. USD Tether is most commonly used in trading pairs with other digital assets and cryptocurrencies or as a means to transfer payments. 4) Utility Tokens Utility tokens are a category of cryptocurrency whereby a user can use a particular token within a certain ecosystem. The use of these tokens varies [...]

2022-07-05T11:24:18+10:00September 17th, 2021|Blog, Cryptocurrency|
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Media Magnates Found Liable for Defamation via Third Party Comments made on Facebook

On 8 September 2021, the High Court of Australia handed down a decision relating to who may constitute a publisher of defamatory matter. In the case of Fairfax Media Publications Pty Ltd v Voller, Nationwide News Pty Limited v Voller, Australian News Channel Pty Ltd v Voller [2021] HCA 27, the Appellants, Fairfax Media, Nationwide News, and the Australian News Channel, produce newspaper articles and are responsible for the operation of television stations. All three, as part of their daily practice, post content on their respective Facebook pages alongside hyperlinks to the coinciding stories. These posts allow other Facebook users to respond freely with comments. The three media companies posted content referring to Mr Dylan Voller (the Respondent) and his incarceration in a juvenile detention centre. This content included comments pertaining to the mistreatment of the Respondent in the Don Dale youth detention centre. With this, followed numerous third-party Facebook users responding with comments that were alleged to be false and defamatory by the Respondent. The Respondent commenced proceedings alleging the three (3) media companies were the publishers of those comments. The media companies appealed the decision on the basis that they were not the publishers of the comments. The High Court disagreed with the media companies and found that they were the publishers of the third-party comments and therefore dismissed the appeals. The High Court held that the liability of a person as a publisher depends upon whether that person, by facilitating and encouraging the relevant communication, "participated" in the communication of the defamatory matter to a third person, stipulating that a person may not be the author, yet can still find themselves being the publisher via acts of facilitating and encouraging such posts. This decision carries with it a warning that a person may be found to have published defamatory matter due to the actions of a third party. The Appellants in this case, being the media companies, were not aware that the defamatory matter had been posted nor did they intend to convey such matter. Despite that, they were still found to be responsible. The practical implications of this decision are not entirely clear at this stage. Arguably, initial publishers may be liable for captions attached to any posts that are shared on social media, not just comments published on their original post. In any event, this decision will certainly affect users of all social media platforms that provide users the ability to comment on posted content. To mitigate the risk that will now invariably attach to any post published on social media platforms, users will need to regularly monitor their posts and filter their comments because, despite not being the author of the defamatory comments, as the publisher, they may nevertheless be deemed liable for the same. Do you require legal advice in the following areas? Can you be sued for third party comments on social media? How can a business protect themselves from being sued for defamation? What proof do you need to sue for [...]

2022-07-05T11:24:20+10:00September 15th, 2021|Blog|
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Insuring a Freehold Property in Queensland: What Buyers may not know…

Queensland insurance requirements when purchasing property vary significantly from other states and territories in Australia. To avoid any undue risk, a buyer must be aware of their insurance responsibilities on signing a Freehold contract. Things to consider: · Who is responsible for insurance during the settlement period? · Do you need building insurance before settlement? · Why home insurance is important? Transfer of Risk The risk of the property is transferred to the buyer at 5 pm on the first business day after the contract is signed. This transfer of risk is not delayed where a contract is subject to cooling off or conditional on building and pest or finance conditions. When Should Insurance Be Taken Out? With the transfer of risk, comes the responsibility of insurance coverage. Under a standard Freehold REIQ contract, the buyer is responsible for the property insurance (Note: this excludes body corporate insurance) from 5 pm the next business day after signing the contract. What if the Vendor already has Insurance? The common misconception when purchasing in Queensland is that the property is covered under the Vendor’s insurance. This is not entirely untrue as the property will still be covered under the Vendors policy until such time that the title is transferred, or the policy is cancelled. However, in the event of damage to the property, a buyer cannot make a claim on the Vendors insurance. Regardless of whether a property is already insured, a buyer cannot rely on the Vendor’s policy to protect them in the event of damage or failure by the Vendor to insure. The Importance of Insurance As beforementioned where the property is damaged before settlement, there is no guarantee the Vendors insurance policy will cover the damage. Subject to the conditions of the contract, after such time as the risk is transferred, a buyer cannot terminate a contract on account of property damage. This means an uninsured buyer will inherit the damage on settlement. A buyer should mitigate this risk by taking out an insurance policy immediately on signing the contract especially if the Vendor has let their policy lapse during the period time of the contract. It is recommended that a buyer conducts all due diligence with respect to Insurance obligations under the contract with their Solicitor/Conveyancer, Mortgagee and or Insurance Company. By Aspen Roggeveen DISCLAIMER: This article is only meant to give you general information and should not be relied on as legal advice. Speak to one of our lawyers for more information. Salerno Law is managed by Emma Salerno, Managing Partner and CEO, who has a wealth of experience from operating her own businesses across Australia as well as a range of in-house and commercial experience both in Australia and overseas.

2022-07-05T11:24:20+10:00September 14th, 2021|Blog, Property & Conveyancing|
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How Long Does it Take to Settle a Deceased Estate?

When appointed to the post of the executor of a deceased estate, the lucky winner inherits an important role that will require them to administer the assets and liabilities of the deceased pursuant to what was in their Will (if they had one), among many other things. However, the entire process is not as straightforward as this, and typically includes the following: Reviewing the final Will of the deceased to confirm that they are the ‘named executor’ and therefore have the right to become the executor. Advertising their intention to apply to become the executor, which has the dual function of notifying any creditors of the estate that they should contact this person regarding the debts owing by the deceased, and it lets any other parties that may be interested in becoming the executor that they have some competition. Notifying any government departments of the deceased’s death, as necessary. Preparing and filing an application to the Supreme Court of that relevant state or territory for a grant of probate. Obtaining the grant of probate. Gathering information on the assets and liabilities of the estate. Paying the creditors of the estate. Attending to any taxation or accounting obligations of the estate. Distributing the remaining assets pursuant to the terms of the Will or rules of intestacy. Generally, steps 1-5 can take around one to three months, with the remaining steps (including the minimum statutory waiting periods) can take around six to eighteen months from the date of death. Naturally, things can go awry, which can protract these timeframes, such as when a concerned relative or the Supreme Court questions the testamentary capacity of the deceased when they made their final Will, or if your greedy evil stepsister challenges the estate for a distribution from the estate. Should these situations arise (or countless others), then this could blow out the timeframes mentioned above by a year or two in some cases. At the end of the day, some estates may be simple to administer while others can be complex, even before a fly lands in the proverbial ointment. In either scenario, it is always best for an executor to seek legal advice to help them traverse the administration of a deceased estate to ensure that it is resolved as efficiently as possible. By Steven Hodgson DISCLAIMER: This article is only meant to give you general information and should not be relied on as legal advice. Speak to one of our lawyers for more information. Salerno Law is managed by Emma Salerno, Managing Partner and CEO, who has a wealth of experience from operating her own businesses across Australia as well as a range of in-house and commercial experience both in Australia and overseas.

2022-07-05T11:24:21+10:00September 8th, 2021|Blog, Wills & Estates|
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Protecting Your Estate and Your Beneficiaries with a Testamentary Trust

You may know that you can create a trust to protect your assets and control how any income generated will be distributed to certain people, but did you know that you can establish a trust upon your death pursuant to the testamentary wishes in your Will? This is called a testamentary trust. A Trust Created by a Will The testamentary trust is an asset holding vehicle created by a Will-maker’s Will that only arises upon the death of the Will-maker. The Will-maker can make specific distributions under their Will as normal, such as giving the antique crockery set to their great-niece, and then they can have the remainder of their estate placed in a trust and set out specific rules for their trustee(s) (the person/people in charge of running the testamentary trust) as to how the trust should be operated and for whose benefit (the beneficiaries). The Key Players The beneficiary is the person that naturally benefits from the trust. A Will-maker can nominate anyone they like (and as many people they like) to be a beneficiary under their testamentary trust. The Will-maker must select a reliable and responsible person that they trust (no pun intended) to objectively administer the property and assets of the trust for the benefit of the beneficiaries. This person is known as the trustee. The trustee can be an incorporated entity or an individual (so long as they meet certain standards) and they can even be a beneficiary. This is a big role, so the Will-maker should choose wisely. The Will-maker may be called the testator or settlor. The settlor is the usual legal term for the person that creates a trust when they settle the trust with their signature. However, because they will be deceased when the testamentary trust is created, it is more correct to refer to them as the testator, being another name for a Will-maker. The Good, the Bad, and the Ugly There are a number of pros for creating a testamentary trust through your Will, and these include: It may be preferable for a Will-maker to establish and have a trustee control a structure that allows the ‘slow-drip release of a beneficiary’s distribution to ensure that it lasts for their lifetimes (rather than giving it to them in one lump sum as it would be under a normal Will), for those beneficiaries, who are known as spendthrifts or irresponsible gamblers. The assets of the testamentary trust are generally excluded from any court action (such as divorce or bankruptcy proceedings), which can be handy for a Will-maker who wants to protect a particular beneficiary when they can see trouble brewing in their foreseeable future. There are numerous tax advantages and concessions involved with having a testamentary trust, such as trusts not needing to pay tax on income that is distributed to beneficiaries, among many other things. But there are also cons, such as: Testamentary trusts can be highly complex, which makes things confusing for trustees and beneficiaries, especially in circumstances where [...]

2022-07-05T11:24:22+10:00September 1st, 2021|Blog, Wills & Estates|
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RSPCA Found to Have Engaged in an Abuse of Power Following a Failed Criminal Prosecution

Salerno Law regularly provides legal advice to clients involved in both the agricultural and livestock industry. This includes providing advice in relation to regulatory issues, WorkCover prosecutions and criminal proceedings. On some occasions, these criminal proceedings involved charges relating to animal cruelty. In a recent landmark case, Salerno Law was instructed to act on behalf of a part-time dog breeder (the Accused) who was facing charges brought by the RSPCA. Following lengthy and protracted criminal proceedings, the Accused (with the assistance of Salerno Law) was successful in having the seventeen (17) charges preferred by the RSPCA dismissed in the Liverpool Local Court in their entirety. Furthermore, the RSPCA was ordered to pay all of the legal costs incurred by the dog breeder in the defence of the proceedings. The criminal proceedings, which began in 2019 and spanned almost two years, involved the seizing of twenty-six (26) dogs (including puppies from the Accused’s home by RSPCA officers). The Accused was operating a very small, but successful dog breeding business. The RSPCA alleged that under the Prevention of Cruelty to Animals Act 1979 (NSW), the Accused failed to provide necessary veterinary treatment to the seized dogs. This was despite the Accused having records and veterinary evidence that all of the puppies had received all necessary veterinary treatment (including vaccinations and appropriate microchipping). The Accused denied all of the allegations, and Salerno Law were instructed to fully defend all of the charges. On multiple occasions, and from the time the dogs were seized, through correspondence with the RSPCA Salerno Law requested that the dogs be returned to the dog breeder. This being on the basis that the evidence produced by the RSPCA did not support the allegations made, the initial seizure of the dogs was unlawful and where the dog breeder had provided all necessary veterinary treatment to the seized dogs. Despite Salerno Law’s best efforts to encourage the RSPCA to discontinue the criminal charges preferred, the RSPCA remained determined in their position. This included refusing to return the seized dogs which included dogs that had been family pets for many years. Indeed, in the weeks prior to the hearing, the RSPCA issued the Accused with an invoice totalling more than $85,000 for its housing and veterinary treatment costs for the seized dogs. The RSPCA sought payment of the invoice from the Accused, a forfeiture order for all of the seized dogs, an order banning the Accused from being able to keep any animals and also a fine. Consequently, the matter proceeded to trial. On 7 May 2021, this matter was heard before Magistrate R Prowse in the Liverpool Local Court of NSW for a two (2) day trial. On the second day, his Honour agreed with the Accused’s submissions and found that the RSPCA engaged in an “abuse of power” in firstly entering the accused’s property without a warrant and thereafter seizing the dogs. Furthermore, it was found that the RSPCA had “No Prima Facie case” for any of the seventeen (17) [...]

2022-11-30T14:02:52+10:00September 1st, 2021|Agribusiness, Blog|
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Is Bitcoin “Real Money” Now?

On 9 June 2021, the El Salvadorian President, Nayib Bukele, and the El Salvadorian Congress voted on the “Bitcoin Bill” that would see the cryptocurrency Bitcoin, becoming adopted as legal tender in the country. The Bill passed with an astounding 62 out of 84 possible votes cast in favour. Accordingly, Bitcoin is set to become legal tender within El Salvador on 7 September 2021, being 90 days from the date the Bill was passed. The move to recognise Bitcoin as legal tender in El Salvador raises the question – what effect will El Salvador’s ‘bold’ move have on the economies and legislative procedures for other nation-states such as Australia? Bitcoin becoming legal tender in El Salvador may mean that Bitcoin could be considered as a foreign currency rather than a mere intangible form of digital asset or cryptocurrency. What is happening in El Salvador? It has been reported that over 70% of the population in El Salvador (which has a population of 6.5 million people) is unbanked and do not have access to a bank account. The move to adopt Bitcoin as a form of legal tender aims to promote financial inclusion and reduce barriers to accessing the financial system for El Salvadorians. In facilitating the adoption of Bitcoin becoming a form of accepted legal tender, the El Salvadorian Government will absorb the conversion costs for the exchanges to facilitate the exchange of fiat currency (such as USD) and Bitcoin and has mandated that merchants must accept Bitcoin as payment for goods and services. The El Salvadorian government has also increased the promotion of the new Bitcoin Law by airdropping Bitcoin into the wallets of El Salvadorians. How will Bitcoin becoming legal tender in El Salvador impact us in Australia? The answer to this question is quite unknown as the move by El Salvador is unprecedented and there has been no clear guidance to date. Our view is, that upon Bitcoin becoming considered as a legal tender in El Salvador, Bitcoin may no longer be considered solely as a digital asset or cryptocurrency and could, in fact, be a form of foreign currency. Importantly, if Bitcoin is categorised as foreign currency, this may have consequences for the wider Australian legal and regulatory landscape that was not intended or contemplated. Specifically, we note that Bitcoin as a foreign currency may have implications for: · taxation purposes; · the financial services regulatory regimes (including AFSL Licensing and AML/CTF obligations); and · personal property. One example of this can be found within section 10 of the Personal Properties Securities Act 2009 (Cth) where "currency" is defined as the currency authorised as a medium of exchange by the law of Australia or of any other country. This would arguably mean that security interests attaching to Bitcoin will need to be registered under the class of currency as opposed to intangible assets on the PPSR. Practically for the cryptocurrency industry, Bitcoin as a foreign currency may have implications on how Digital Currency Exchanges conduct the [...]

2022-07-05T11:24:24+10:00August 25th, 2021|Blog, Cryptocurrency|
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Class Action win against the WA State Government on Pastoral Rent Increase

Salerno Law recently represented members of the Kimberley Pilbara Cattlemen’s Association (KPCA) in a decidedly successful Class Action objecting to the Western Australian Valuer General (VG) 2019 pastoral rent assessment. The VG rent assessment had increased rents by more than 300% for some pastoralists. The class action objection, led by Salerno Law Managing Partner Emma Salerno, resulted in ALL objections being allowed and pastoral rents being decreased by up to 250% in some cases. Pastoral Rents in Western Australia are determined every five years by the Valuer General with rents based on a combination of factors. The factors include, but are not limited to, land values, the economic state of the pastoral industry and the rate of return. Salerno Law lodged objections on behalf 103 cattle stations and ALL objections were allowed, with significant impacts for the industry including: A reduction of the capitalisation rate from 2.8% to 1.8% A reduction of the average pastoral rent increase in the Kimberley from 325% to 104% A reduction of the average pastoral rent increase in the Pilbara from 91% to 10% A reduction in unimproved land value These significant rent reductions have massive economic flow on effects for the pastoralists. A reduction in unimproved values will result in a reduction in Shire rates and biosecurity levies payable. Salerno Law’s win for the pastoral industry also ensures the ongoing accountability of the State Government, in circumstances where government determinations can have disastrous economic impacts on industry. Sentiments within the industry are high following this result, and Salerno Law aim to assist members to increase certainty and clarity around the rent determination process. By Emma Salerno DISCLAIMER: This article is only meant to give you general information and should not be relied on as legal advice. Speak to one of our lawyers for more information. Salerno Law is managed by Emma Salerno, Managing Partner and CEO, who has a wealth of experience from operating her own businesses across Australia as well as a range of in-house and commercial experience both in Australia and overseas.

2022-07-05T11:24:25+10:00August 19th, 2021|Agribusiness, Blog|
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Magpies Could Lose Premiership Title Due To Drunk Goal Umpire

Salerno Law regularly provide legal advice in all areas pertaining to sport. This includes providing advice to both professional athletes, sporting clubs and governing bodies on corporate, commercial and contractual matters, advising on personal injury claims suffered during sport, sanctions against players and clubs (including for doping violations) and also appearing for players and clubs in relation to both administrative and judiciary matters. This has included providing legal advice across all of the major Australian sporting codes and also to some of Australia’s most high profile rugby league, AFL and rugby union players and clubs. This expertise in sports law also extends into regional sport, particularly where Salerno Law have an office in Kununurra, Australia. In fact, Kununurra Oval and not the MCG, was last weekend subject to sporting controversy. In this regard, the result of the East Kimberley Football League (EKFL) Grand Final is in limbo due to somewhat unusual and novel circumstances. Following a nail-biting victory to the Ord River Magpies over the Halls Creek Hawks on Saturday, 7 August 2021 by 43pts to 42pts, the Magpies thought that they had tasted premiership success. However, the Hawks considered that one of the of goal umpires had cost them victory in circumstances where goals were deemed behinds and vice versa. These decisions being at the expense of the Hawks. Of particular concern was that a behind was awarded to the Hawks in the dying minutes when some players and spectators considered it was in fact a winning goal. Remarkably, following a complaint from Hawks officials shortly after the final siren, the goal umpire in question was immediately breathalysed and found to be over the legal limit to drive a vehicle. This has resulted in the fate of the EKFL premiership being passed to the Western Australian AFL Football Commission (Commission) to deem whether the result should stand, or whether the game will be required to be replayed (and no doubt being officiated by extremely sober umpires). The Commission will have the benefit of video footage and photographic evidence of the final to help them in their deliberations. The decision of the Commission is being eagerly awaited and with much interest by the people of the East Kimberley (which covers a large part of North West Australia and incredibly is bigger in size than both Greece and Cuba). This is particularly the case where there is extreme passion for AFL in the East Kimberley. Should you require any legal advice or assistance in relation to any sports related matter please contact Salerno Law’s Managing Partner, Cliff Savala. Cliff heads up the Salerno Law Sports Law team and his experience in sports law includes acting for the Australian Sports Anti-Doping Authority, numerous Australian athletes (including professional athletes who have represented Australia), national sporting bodies and professional sporting clubs. Cliff also sits on various sporting judiciary committees including Football Queensland Appeals Tribunal and Gold Coast Rugby League Disciplinary Tribunal and was also recently appointed Honorary Solicitor for Football Gold Coast. By Cliff [...]

2022-07-05T11:24:25+10:00August 12th, 2021|Blog, Sports|
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Transferring Title of a Property After Death

Transferring Title of a Property After Death When a loved one passes away, it is a difficult period that is made more difficult by the requirement to administer their estate. The largest and most intimidating asset to administer within an estate is often real property – the family home or plot of land – and due to the financial and sentimental value of such an asset, it is important to deal with it quickly and with as little trouble as possible. In circumstances where the deceased person is the sole owner or holds an interest in the property as a tenant in common, a transmission application can generally be used to transfer the title of the property from the deceased to the beneficiary that is receiving the interest in the property under the Will or to executor of the estate so they can deal with it according to the terms of the Will. If you have been appointed as an executor of a deceased estate or if you are a concerned family member or beneficiary, please contact our Wills & Estates Team to discuss whether a transmission application would be appropriate in your situation. Our Conveyancing Team will also be happy to discuss any further work, as necessary. Contact Steven Hodgson for more information about title transfers. Steven Hodgson | Senior Lawyer T: +61 (7) 5575 8011 | E: s.hodgson@salernolaw.com.au

2022-07-05T11:24:26+10:00July 12th, 2021|Blog, Wills & Estates|
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