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Securing Tomorrow: Understanding Estate and Non-Estate Assets and the role of Nominations

Securing Tomorrow: Understanding Estate and Non-Estate Assets and the role of Nominations. Estate planning plays a pivotal role in guaranteeing the orderly distribution of assets according to your wishes following your death, thereby safeguarding the financial well-being of your loved ones. It entails planning a comprehensive strategy for the administration of your estate’s assets, properties, and investments. It is essential to prioritise understanding the diverse components comprising an estate and methods to guarantee that its state of administration is clear. Understanding Estate and Non-Estate Assets Estate assets are assets including real property, investments, personal belongings, and other tangible assets. The distribution of estate assets is overseen by the executor. Conversely, non-estate assets are those that are not automatically governed by a Will and do not form part of the deceased individual’s estate upon their death. This can include superannuation funds and life insurance proceeds held outside of the estate. Non-estate assets include superannuation, life insurance payouts and assets held in trust. The distribution of non-estate assets requires specific arrangements made by the individual prior to their death, as they may not be covered by terms of the Will. Superannuation and life insurance are often crucial components of estate planning and act as significant sources of financial support for loved ones. Nominations In estate planning, nominations involve choosing who will receive your assets or take on specific roles after your death or become unable to make decisions. This includes naming beneficiaries for your financial accounts and insurance policies, as well as appointing executors, guardians for minor children, or trustees to manage assets for beneficiaries. A binding nomination legally obligates the trustee of a superannuation fund or insurance policy to distribute assets according to the specified beneficiaries outlined by the nominator. You can also elect a non-binding nomination which can strip you of your decision-making authority, leaving you with limited control over important matters. This can lead to potential repercussions and outcomes that may not align with your preferences or best interests. Given the importance of Superannuation and Life Insurance in securing financial support for your loved ones, it's crucial to address these matters properly. Setting up clear legal arrangements helps protect these assets and ensures your beneficiaries are taken care of. Importance of Professional Guidance Navigating estate planning can be especially challenging, particularly when it comes to nominations and distributing assets, therefore it is important to obtain appropriate advice. Salerno Law excels at guiding clients through this complex area of Wills and Estates. Our team comprehend the intricacies of Wills and Estates and offers tailored and accurate guidance that aligns with each individual's circumstances. Author: Liam Denniston & Steven Hodgson

2024-04-02T15:16:36+10:00April 2nd, 2024|Wills & Estates|

Balancing Act: Safeguarding the Work-Life Harmony of Casual Employees in Australia

Balancing Act: Safeguarding the Work-Life Harmony of Casual Employees in Australia   Introduction: The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (The Act) aligns with the overarching principles of the Fair Work framework in Australia, aiming to create an environment where every worker is treated with dignity, respect, and fairness. By addressing proper classification of employees, criminal wage theft and the right to disconnect, amongst other things, this comprehensive legislative initiative aims to address issues within the employment sector, fostering a more equitable and supportive environment for workers across the nation. The balances of changes will be introduced over the next ten months so not all amendments are currently active.  Although The Act is currently waiting on royal assent, for the purpose of the article we will still refer to it as The Act. Key Features of The Act Amendments Classification of Employees; Wage Theft & Criminal Implications; Casual Conversion: Roles & Responsibilities; and The Right to Disconnect & Unfair Dismissal. Classification of Employees Identifying and properly classifying employees, including casual employees, is crucial for both employers and employees to ensure legal compliance and prevent potential criminal liability. Incorrectly classifying employees, intentionally or unintentionally, may result in wage theft accusations. This could lead to legal action, financial penalties, reputable damage, and criminal charges against the employer. This is especially the case if it is found that the misclassification was intentional. Wage Theft & Criminal Implications Increased Financial Penalties: The Act will introduce escalated financial penalties for businesses caught underpaying their workers. These penalties are designed to reflect the severity of the offence, acting as a powerful deterrent against unscrupulous practices. Individual Accountability: Acknowledging the role of individuals in positions of authority, the Act holds key personnel, such as directors and executives, personally accountable for wage theft offenses committed by their organisations. This individual accountability adds an extra layer of responsibility and discourages unethical practices. Enhanced Reporting and Pay Transparency Requirements: The Act mandates more detailed and frequent reporting on wage payments, fostering transparency and enabling early detection of wage theft. Businesses are now required to provide comprehensive pay information to their employees, ensuring that any discrepancies are identified promptly. Criminal Law and Penalties: Recognising the urgency of addressing wage theft, there has been a growing push to reform Australia’s industrial relations laws and hold employers accountable for their actions.  If employers are reported and found guilty, they may face severe consequences such as receive a prison sentence of up to 10 years or a substantial fine, potentially reaching as high as $1.5 million, or both, as determined by the Court. For body corporate employers, the fines imposed by the Court could be even more substantial, potentially reaching as high as $7.8 million, surpassing the penalties levied on individuals. Casual Conversion: Roles & Responsibilities Casual Conversion: Casual conversion refers to the process by which casual employees can request to convert their employment status to permanent after meeting certain criteria. The Act now provides an alternative pathway to casual conversion, [...]

2024-02-22T12:35:25+10:00February 22nd, 2024|Employment & Industrial Relations|

Navigating Family Law Property Settlements: The Impact of Gambling Activities

Navigating Family Law Property Settlements: The Impact of Gambling Activities Introduction: Family law property settlements are intricate processes that involve the fair division of assets between separating parties. When one or both individuals have engaged in gambling activities during the course of their relationship, it introduces a layer of complexity to the settlement proceedings. This article explores the impact of gambling activities on family law property settlements and provides insights into how individuals can navigate these challenges. Financial Disclosure and Transparency: One of the obligations in Family Law property settlements is the requirement for full financial disclosure. According to Rule 6.06 of the Family Law Rules, parties must disclose all sources of earnings, including income from gambling. This includes detailed information about property disposals made in the period surrounding separation, ensuring transparency in the assessment of each party's financial position. Entertainment Vs Wastage- Legal Perspectives: Family law recognises that personal life activities, such as gambling, can be considered a form of entertainment. The case of De Angelis and De Angelis [1999] FamCA 1609 (FC) established that spending money on activities like gambling should not be criticised any more than spending on other forms of entertainment, such as sports. However, the impact of gambling on Family Law property settlements becomes significant when it gives rise to a wastage claim. Generally, financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally). Wastage, as defined by the landmark case of Kowaliw & Kowaliw [1981] FamCA 70, occurs where: where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or where one of the parties has acted recklessly, negligently, or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value. For example, Alex and Susan separate after 10 years of marriage. Alex and Susan are a couple of reasonable means. They earn a combined income of $190,000 per year and own several investment properties: Over the course of the relationship Susan gambles and loses $100,000. Susan has to refinance the martial home to fund her gambling habit. This conduct is likely to give rise to a wastage claim. Susan gambles recreationally on the weekends. She will put $250 in the pokies or place a $100 bet on a horse and often buys a lottery ticket. Susan wins some and loses some, but she loves the excitement of playing. This conduct is unlikely to give rise to a successful wastage claim as it does not satisfy the threshold of recklessly, negligently, or wantonly conduct. Alex is a semi-professional poker player. Alex spends his weeknight playing poker at the local casinos and weekends travelling to poker games. Alex has a separate bank account for his poker ‘side hustle’. Alex’s is sure his winnings outweigh his losses. In fact, Alex calculates that [...]

2024-02-01T14:41:19+10:00February 1st, 2024|Family Law|


10 TIPS FOR LOOKING AFTER YOUR MENTAL HEALTH DURING FAMILY LAW PROCEEDINGS It is well known that family law proceedings are incredibly stressful for all parties involved. Particularly for parties to parenting and/or property matters, court proceedings are emotionally draining and incredibly stressful. The legal complexities and personal dynamics involved in matters such as divorce, care arrangements for children, and property settlement can take a toll on your mental health. Taking proactive steps to care for your well-being during this process is crucial. Here are 10 tips to help you navigate family law proceedings while safeguarding your mental health. Establish a Support System: Surround yourself with a network of friends and family who can offer understanding, encouragement, and a listening ear. Sharing your thoughts and feelings with trusted individuals can help alleviate stress and provide a sense of connection. If you can, speak with someone who has gone through family law proceedings before and can empathise with your experience. Set Realistic Expectations: Family law proceedings can be unpredictable. Set realistic expectations for the process and outcomes, understanding that it may take time to reach a resolution. Ask your Family Lawyer to give you realistic advice of what to expect in terms of time frames and potential final outcomes. Be patient and focus on managing your expectations to reduce unnecessary stress. Don’t hesitate to ask you Family Lawyer questions if you are feeling unsure. Practice Self-Care and Mindfulness: Prioritise self-care activities that promote physical and mental well-being. This includes regular exercise, a balanced diet, sufficient sleep, and activities you enjoy. Taking care of your overall health can enhance your ability to cope with the challenges of family law proceedings. Incorporate mindfulness and relaxation techniques into your routine to manage stress and anxiety. Practices such as meditation, deep breathing, or yoga can help you stay grounded and focused during emotionally charged situations. Stay Informed, but Avoid Overexposure: Stay informed about the legal aspects of your case but be mindful of not obsessing over every detail. Set designated times to review updates and respond to your Lawyer. Try to avoid constant exposure to legal matters to prevent unnecessary anxiety. Seek Professional Support: If you are struggling, consider consulting with a mental health professional, such as a therapist or counsellor, to provide emotional support and coping strategies. Even just a couple of sessions with a mental health professional may help institute effective coping strategies for the duration of your family law matter. Maintain Clear Communication: Open and clear communication is essential during family law proceedings. Establish appropriate and healthy communication channels with your Family Lawyer, ex-partner (if necessary), and any involved parties. This can help prevent misunderstandings and unnecessary conflicts. If you are still in contact with your ex-partner or their family members (for example for co-parenting or business purposes) your Family Lawyer may be able to assist you in establishing healthy communication. Reaching out to your Family Lawyer for assistance on if or how to respond can help prevent avoid emotionally charged [...]

2024-01-16T10:56:29+10:00January 16th, 2024|Family Law|

The Evil Opportunists: Please Donate Your Personal Details

The Evil Opportunists: Please Donate Your Personal Details The ABC recently revealed that a number of popular Australian not-for-profit charity organisations (NPCO’s) were inadvertently involved in a data leak when a Brisbane based telemarketing company that contacted potential donors was hacked by cyber criminals. The data leak led to the personal information of the charitable benefactors being uploaded to the dark web.[1] Well known charities such as the Cancer Council, Canteen and The Fred Hollows Foundation were confirmed as having donors’ personal data compromised. However, it is understood that more than 70 other Australian charities use the company responsible for the breach to contact potential donors. In light of such data breaches, should Australian NPCO’s place greater priority on measures that safeguard donor data and maintain public trust? Australian Charities Snapshot Australians have a long history of supporting charitable causes with the first Australian private charity dating back to 8 May 1813, when what is now known as the Benevolent Society was formed, which was the first charitable organisation dedicated to meeting the needs of vulnerable groups.[2] Today, the list of NPCO’s in Australia has expanded to include: approximately 60,000 charities, which equates roughly to one charity for every 433 Australians; the employment of 1.42 million Australians, which account for 10.5% of all Australian employees; the collection of $13.4 billion in donations in 2021 alone; holding approximately $31 billion in assets; and the distribution of $9.7 billion annually through grants and donations.[3] These statistics highlight the willingness of Australians to donate, and how prevalent charities are in Australian society. Therefore, given the recent data breach (and how many more have there been that we aren’t aware of), should Australian’s be concerned with the governance, structure and security of NPCO’s? What defines an NPCO? There a very strict compliance rules and obligations for an organisation to be recognised, and operate, as an NPCO in Australia. NPCO’s are governed by the Charities Act 2013 (Cth) (Act), which is administered by the Australian Charities and Not-for-profit Commission (ACNC). The Act states that to be recognised as a charity, an organisation must: be not-for-profit; have only charitable purposes that are for the public benefit; not have a disqualifying purpose (which are engaging in, or promoting activities that are unlawful or contrary to public policy; and promoting or opposing a political party or candidate for political office); and not be an individual, a political party or a government entity. How to create an NPCO Firstly, anyone who wishes to create an NPCO must have the correct legal structure for their specific organisation, as different legal structures create different legal obligations and provide different benefits and drawbacks. When deciding on a legal structure, any potential NPCO must consider (among other things): the charity’s size and how complex its activities will be; whether it will have employees or volunteers; the potential personal liability of members or office holders; and any eligibility for tax concessions. The most common legal structures for an NPCO in Queensland are an [...]

2023-11-30T11:54:19+10:00November 29th, 2023|Not for Profit|

The “Big Jack” Verdict: No Trade Mark Infringement by Hungry Jack’s

The "Big Jack" Verdict: No Trade Mark Infringement by Hungry Jack's Following a 3 year Court battle brought by McDonald's against Hungry Jack's, the Australian Federal Court has ruled that Hungry Jack's did not engage in trade mark infringement. The fast-food industry is highly competitive, with companies constantly vying for the attention of consumers and innovating to stay ahead. The legal beef between the burger giants began when Hungry Jack's released burgers called the "Big Jack" and "Mega Jack". McDonald's alleged that this was an infringement of McDonalds' trade mark over "Big Mac". During the trial, Hungry Jack’s chief marketing officer, Scott Baird, admitted that there was an "element of cheekiness" in the burger name, but maintained that the name was not chosen because of its similarity with McDonalds' burgers. The Court emphasised that for a trade mark to be protected, it must possess a level of distinctiveness that sets it apart in the market. McDonald's asserted that the use of the term "Big" in Hungry Jack's Big Jack was an infringement. However, the Court clarified that trade mark protection is not absolute and does not extend to every use of a common term like "Big." The scope of protection must be reasonably defined. Another critical legal consideration was the examination of how consumers could perceive the products. The Court looked at whether the average consumer would likely be confused between the Big Jack and Big Mac. The Court held that the respective names were not deceptively similar and that consumers would not be confused between which restaurant sold the respective burgers. It wasn't however a total win for Hungry Jack's. McDonald's succeeded in a separate argument that Hungry Jack's had mislead consumers and breached consumer laws by advertising that its Big Jack burger contained "25% more Aussie beef" than the Big Mac burger. Tests conducted by a scientist during the trial showed Hungry Jacks' claim to be incorrect. This case shows that the argument of trade mark infringement can often be a fine line. Such disputes highlight the competitive nature of the market and the lengths companies are willing to go to protect their brand identity. If in doubt about whether your advertising (or that of a competitor) may constitute trade mark infringement, obtaining legal advice is key.  By Luke McKavanagh Luke is part of Salerno Law's commercial law team. His days involve providing advice on a wide variety of commercial issues that arise in operating small to medium businesses, where he assists clients who are growing their business or wanting to protect what they’ve established.

2023-11-20T17:04:23+10:00November 20th, 2023|Copyright & Trademark, Litigation|

Kanye West’s ‘YEWS’ Trademark Application Raises Concerns in Brisbane

Kanye West's 'YEWS' Trademark Application Raises Concerns in Brisbane Introduction Kanye West, the renowned musician and fashion icon, has recently filed a trademark application for the term 'YEWS' with the United States Patent and Trademark Office. The trademark application covers a range of ventures, including fashion and gambling. While this move represents a strategic expansion of West's brand, it has raised concerns for a Brisbane-based tech company, Your Easy Web Solutions (YEWS), which uses the acronym 'YEWS' for its business operations. This article explores the potential ramifications of West's trademark application on YEWS and the associated concerns regarding the controversial views expressed by the rapper. The Trademark Application Kanye West's trademark application for the term 'YEWS' signifies his intention to use this brand for various business activities, notably fashion and gambling. This development indicates West's expansion beyond the music industry into sectors that may overlap with the operations of other companies, such as YEWS. In this regard, various music artists (Beyonce, Taylor Swift, Dr Dre, Jay Z, etc) have enjoyed phenomenal success with business ventures outside their normal music endeavours. Concerns for Your Easy Web Solutions (YEWS) Brisbane's tech company, Your Easy Web Solutions, currently utilizes the acronym 'YEWS' as part of its brand identity. In recent media reports, YEWS’ Managing Director, Alexei Kouleshov, has expressed genuine concerns regarding the potential impact of West's trademark application on YEWS. These primary concerns being as follows: 1. Rebranding Requirement: Should Kanye West's trademark application be approved, it might necessitate that YEWS undergo a significant rebranding effort. This process can be costly and time-consuming, potentially affecting the company's pre-established identity. 2. Reputation and Controversy: A central concern lies in the potential association between the term 'YEWS' and the similarity to the word 'Jews.' Given Kanye West's history of making controversial and his recently reported anti-Semitic comments, this connection may result in reputational damage for the Brisbane-based company for Kanye West using the term ‘YEWS’. Such negative connotations could harm YEWS' image and standing in the market. 3. Neutral Business Orientation: Mr. Kouleshov emphasised that YEWS is a neutral entity when it comes to political and controversial matters. The company having operated for 16 years with a focus on web development and digital marketing. Any unintended association with controversy could adversely affect the company’s position and standing as a reliable and neutral service provider. 4. Legal Action to Protect Brand Identity To safeguard the company's brand identity and reputation, Mr. Kouleshov expressed his commitment to taking all necessary legal actions. This suggests that, if West's trademark application poses a substantial threat to YEWS, the Brisbane-based tech company may explore legal remedies to protect its interests and ensure its continued operation with minimal disruption. The obvious concern being the uphill battle that Mr. Kouleshov may face, as a business owner, taking on someone who has significant financial and legal resources such as Mr. West. Trademark/Copyright Law Do I need to register my trademark? Registering your trademark is not mandatory in Australia, but it is [...]

Cryptocurrency One Step Closer to Traditional Finance in Australia

Cryptocurrencies may have been originally created to operate free from control, but the lack of regulation has been harmful for the sector, innovation, and consumer protection. Only with proper regulation to normalise crypto use, will crypto become a widely accepted component of financial trading, wealth retention and financing. THE WORLD IS REGULATING CRYPTO As can be seen from the below chart, many nations are taking the steps to regulate crypto: Countries like Hong Kong and Singapore are out in front in developing and implementing a regulatory framework around crypto. The United States and Canada are in similar phases of developing and implementing their crypto frameworks. The UK and the EU have implemented legislation to fully regulate Crypto with laws coming into effect in 2024. NOW AUSTRALIA WILL TOO On 16 October 2023, the Australian Federal Treasury issued a Proposal Paper for legislating and regulating cryptocurrency trading, storage and financing in Australia, by regulating digital and crypto asset platforms such as crypto exchanges, that operate in Australia. Submissions on the Proposals can be made before 1 December 2023. Treasury estimates that it will take further consultation on exposure draft legislation in 2014 with a twelve-month transition period following legislation being made law. HOW WILL THE PROPOSED FRAMEWORK OPERATE? The new framework will treat digital and crypto institutions like any other traditional financial institutions by requiring them to meet the same standards as any other financial institutions through the issuance and regulation of Australian Financial Services Licences (“AFSL”): The Australian financial service laws are a time tested and well understood framework to mitigate risks involving businesses holding or utilising client assets. Digital asset platforms will need to meet all general licence obligations, consistent with other licence holders, such as: meeting solvency and cash reserve requirements. keeping and submitting financial records. producing product disclosure statements monitoring for and disrupting market misconduct. providing the financial service efficiently, honestly, and fairly. managing conflicts of interest. having a dispute resolution system CERTAIN DIGITAL ASSET ACTIVITIES WILL HAVE ADDITIONAL OBLIGATIONS The proposal would also apply additional obligations to four specific activities: Trading – the exchange of digital asset platform entitlements between account holders. Staking – the participation in validating transactions on a public network. Tokenisation – the creation and exchange of entitlements backed by tangible and intangible assets. Fundraising – the sale of entitlements to fund the development of products and services. Obligations are targeted to address some of the risks that arise from digital asset platform business models and the nature of the tokens they provide access. IS MICHAEL SAYLOR CORRECT? Michael Saylor, CEO of Microstrategy (a USA listed company that holds over US$4Bn in bitcoin) has stated that three things are needed to have crypto become part of the mainstream financial world: A change to fair value accounting for crypto balance sheet holdings. Increased prevalence of bank custody and collateralized lending. Regulations that make it safe to invest in crypto. The new USA based Financial Accounting Standards Board (FASB) rules effective from 2024 has [...]

2023-11-04T13:56:00+10:00October 19th, 2023|Cryptocurrency, FRONT HOME PAGE|

Flynn Restaurant Group To Bring Wendy’s Company to Australia

Flynn Restaurant Group To Bring Wendy’s Company to Australia According to numerous sources such as Daily Mail Australia, The Wendy’s Company (Wendy’s) is one of the most successful fast-food franchises in the United States of America, where it was founded. The logo of the girl with red hair in pigtails has become recognisable worldwide, even in Australia, where the franchise does not exist - yet. Wendy’s is now looking to grow their success with what their President, and International and Chief Development Officer, calls a move to a strategic growth market with the help of Flynn Restaurant Group. In light of this recent news of Wendy’s partnership with Flynn Restaurant Group to roll out 200 restaurants across Australia from 2025 to 2034, this process requires an Australian presence and franchisees. So, what is a franchise? A franchise is a business structure where the buyer (the franchisee) pays a licensing fee to trade using the branding, trademarks, products, suppliers and systems of an established business (the franchisor). In return, you must strictly follow the franchisor's systems and procedures, which they may change over time. If you are looking to start a business, the franchise model may be a good option for you. It allows you to use a proven business model that you know is successful and that is easy to replicate. Your franchise will be an addition to a striving business network that has established connections, consumer-base and support. How can I bring my international franchise to Australia? If you are based overseas and want to bring your business to Australia as a franchise, you may have a couple options: Your first option is to find and engage a local master franchisee by signing a Master Franchise Agreement. This method would have the master franchisee essentially act as the Australian franchisor, and sell and deal with the smaller single sub-franchise owners or operators. The Master Franchise Agreement would grant the master franchisee the ability to issue franchises in Australia. This allows them to step into what your role would be as the franchisor, whilst you still maintain an element of control from overseas. The other option to bring your franchise to Australia is to remain as the franchisor yourself. To do this, you must comply with the Franchising Code of Conduct (the Code), which is the governing legislation for all things franchising across Australia. You must also comply with the requirements of the Australian Competition and Consumer Commission (ACCC) who act as the regulators of the Code, and are the authority regarding Australian consumer and commercial issues. What are the preliminary steps before the Franchise Agreement? One of the most important requirements as a franchisor when bringing your franchise to Australia is ensuring you have a robust Franchise Agreement and suite of documents that comply with the Code. As per the Code, a Franchise Agreement is a written, oral or implied agreement where the franchisor grants the franchisee the right to carry on business of offering, supplying, or distributing goods [...]

2023-08-31T10:55:22+10:00August 31st, 2023|Commercial & Corporate, Franchising|
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