Staying in Control of Your Life with Salerno Law

Staying in Control of Your Life with Salerno Law “Please note that the information contained in this article strictly deals with Western Australian Law” For many people, not being in control of the decisions they make if a terrible accident or medical issue arises that leaves you unable to make decisions for themselves is their worst nightmare. Thankfully, under Western Australian legislation you can safeguard yourself from this by taking steps to have legal documents prepared to protect your future. For instance, if tomorrow you were in a car accident and suffered a severe brain injury leaving you unable to communicate or make decisions for yourself, you would be relying on others to make decisions for you about your medical treatment. However, if you were to have an Alternative Health Directive prepared for you, you would be able to set out the treatment options that you want, if specific medical conditions arise, and have this set out in one legally binding document that your doctors must follow. This is particularly important in situations where you are concerned that your loved ones may make emotional decisions that approve painful life saving treatments, in circumstances where you would otherwise refuse this treatment if you could make the decision for yourself. Alternatively, if you trust your loved ones not to make the right decisions for you, then you can appoint them as your approved decision maker(s) under an Enduring Power of Guardianship, where they could then make decisions on your behalf regarding your lifestyle, personal life, and health. You can also have an Enduring Power of Attorney prepared, where you can appoint people that you trust to make decisions regarding your finances and property. Regardless of whether you have health concerns or are simply getting a little older, it is crucial that you set in stone what you want to happen and who will make decisions for you if the worst is to happen, so you can have peace of mind in these situations. Please contact us at our Kununurra office and we would be happy to discuss these documents with you and help you determine which are right for you, so you stay in control of your future. T: +61 8 9169 2206 | E: admin@salernolaw.com.au

Salerno Law Marketing2022-07-05T11:24:28+10:00June 29th, 2021|Blog|

Victim Support Scheme

Victim Support Scheme - Have you been a Victim of Violence? The physical and psychological effects that can flow from being the victim of a crime, especially a violent one, can be really tough and make life much more difficult. This is usually compounded by financial stresses involved with medical treatment, counselling, replacing belongings and other expenses that might stem from being the victim of a crime. Fortunately, there are Victim Support Schemes in place across Australia to provide financial support for victims of crime. Many of the requirements are the same across different States and Territories. For example, in Queensland, VictimAssist requires the crime to: Be an act of violence; Have been committed in QLD; Have led to physical or psychological injury, or the death of a close family member; and Have been reported to the police (or in some cases, a doctor or counsellor). Point 4 is particularly important because the violence needs to be reported to the police, either by you or someone else, for you to be eligible for VictimAssist. However, these requirements differ slightly from state to state and will depend on your circumstances. Prospective applicants should be aware that processing times for these applications can be up to 2 years. Therefore, it is vital to start this process as soon as possible, especially considering there are time limitations for making such applications. This entire process is aimed at supporting victims of violence to recover financially, and at Salerno Law, we have helped many people in this situation with the application process, which can be daunting. The weight of dealing with your experience should not be worsened by having to fill out paperwork, so let us help share the load and assist you with this process. If you believe that you have been a victim of violence and would like to apply for financial support, please reach out to our team, and we will discuss with you whether you are eligible to apply and how we can assist you with this process. Contact Salerno Law for more information about victim support. T: +61 (7) 5575 8011 | E: admin@salernolaw.com.au

Salerno Law Marketing2022-07-05T11:24:29+10:00June 29th, 2021|Blog|

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

Salerno Law Marketing2022-07-05T11:24:30+10:00June 29th, 2021|Blog, Wills & Estates|

Applying for the Right to Administer a Deceased Estate

Applying for the Right to Administer a Deceased Estate When a family member dies, it is the duty of the executor to administer the deceased’s estate. This generally means: Arranging the funeral. Making enquiries to determine the liabilities of the deceased. Gathering their assets. Paying out any creditors. Satisfying any taxation and / or accounting obligations of the estate. Distributing the assets to the beneficiaries pursuant to the terms of the Will or the rules of intestacy if the deceased died without a Will. However, before the executor can start this process, they must, in most cases, obtain a grant of probate from the Supreme Court, which is the court’s official authorisation that confirms that the executor has the right to administer the estate and deal with its assets and liabilities. If the deceased died with a Will, they will have named the executor in their Will. It will then be up to that person to apply for the grant of probate if they are willing and able to do this. Conversely, if the deceased did not leave a Will, then the next of kin has the right to apply for a grant of letters of administration and be appointed as the executor. When there is a Will, but the named executor is unwilling or unable to act and someone else is making the application instead, this substitute person will apply for a grant of letters of administration with a Will to become the executor. Despite, the semantics, all these grants allow the executor to do the same thing – to administer the estate. Nevertheless, the application process for a grant of probate or letters of administration can be complex depending on the circumstances, but in all cases, generally involves advertising to the public, notifying government departments, waiting out notice periods, and preparing and filing the application itself. There are also various fees that must be paid. Once filed, the Supreme Court Registry will process the application and, assuming that all criteria have been met, they will then grant probate or letters of administration. If the applicant has missed something however, then the Registry will issue a requisition notice confirming what needs to be rectified for the application to be successful. The timeframes for the Registry to process an application will largely depend on to which Supreme Court Registry you are applying and how busy they are, but it generally takes anywhere between two to eight weeks. Unfortunately, the Registry will rarely expedite an application, so applicants are at their mercy when it comes to processing speeds. Considering the time commitment and complexity of making applications for grants of probate or letters of administration, it is usually in the best interests of the executor-to-be to engage a law firm to assist them apply for the right to administer a deceased estate. So, if you have been named the executor of a Will and need to apply for a grant of probate, or you otherwise believe that you will need to [...]

Salerno Law Marketing2022-07-05T11:24:31+10:00June 29th, 2021|Blog, Wills & Estates|

Debt Recovery Tools for Debtor Companies

Debt Recovery Tools for Debtor Companies There is an unwritten rule in business that if a debtor is 60 days overdue on your invoice, then you can kiss that money goodbye because there is very little chance that it will ever be repaid, which can see a huge loss for you or your company. Companies often walk a fine line when juggling finances to stay afloat and try to rely on goodwill when dealing with creditors to delay paying on time for goods sold or services rendered. But when all that goodwill is spent and a debt becomes overdue, creditors should be aware of the options that are available to them when dealing with debtor companies. Picking up the Phone If you still have a good working relationship with the debtor company, and you want to keep it that way, the first port of call will usually be picking up the phone to have a frank discussion with them to try to get to the bottom of the delay, sort out payment, and determine how both parties can move forward together amicably. Sending a Legal Letter of Demand Failing this or if the business relationship with the debtor company is not a priority, a creditor could engage a lawyer to send the debtor company a hard-hitting letter demanding repayment or proposing a compromise of the debt while also subtly suggesting what will happen if the matter is not settled in a suitable timeframe. In some cases, well-worded correspondence on a scary legal letterhead will be all that is needed to encourage a resolution as opposed to a creditor taking it upon themselves and sending an impassioned but deranged e-mail laced with vulgarities and baseless threats. Engaging a Debt Collector Another option would be to engage a debt collection agency to pursue the debt on your behalf. This can be an effective way to recover an outstanding debt by outsourcing it to a reputable agency that knows how to persuade and pressure debtors, or otherwise, simply hound them into submission. The issue with this option is that debt collectors (perhaps unfairly) have a bad reputation that can lead debtor companies avoiding them like the plague drastically reducing the collection agency’s effectiveness. Nevertheless, in many cases, this can be an easy, hands-off approach to debt recovery. Commencing Court Proceedings Engaging a law firm to prepare and file court documents on your behalf to sue a debtor company is probably the most traditional way to pursue a debt. Naturally, this option can be costly, but it may be the most surefire way to demonstrate to the debtor company just how serious you are about recovering the debt and how far you will go to do it. As for timeframes, if the matter were to go all the way to a final hearing, it could take several months or even years, which does not really help in the short term when you need the monies repaid the most. However, proceedings can settle at any [...]

Salerno Law Marketing2022-07-05T11:24:32+10:00June 29th, 2021|Blog|

Native Title Compensation Claims

Native Title Compensation Claims Some 35% of Australia is covered by native title determinations, with another 200 applications awaiting finalization. Some 50% of Australia will potentially be covered by a native title determination. Native title holders recognized by the Federal Court are entitled to make a compensation claim for past loss of native title over their lands. This involves another application in the Federal Court and requires in depth investigation before commencement. Members should consider their rights carefully and receive detailed legal advice to ensure they make an informed decision. Important considerations include the funding of any claim, expert and elder evidence about cultural loss impacts and the burden this places on them in a litigation setting and then how any award or settlement will be managed by and for the mob. Only 1 claim can be made over the land claimed in the application, so it is vital to ensure it is done properly. Compensation is awarded for compensable acts. These are essentially grants over land that impair or extinguish native title. Such acts can include grants of freehold, leasehold, permits and declarations of national parks. The compensation is assessed as at the date of the act and is based on the freehold value of land impacted by the act, plus interest and special value of cultural loss. The full value of the land will only be available if full native title existed before the compensable act, and all native title was extinguished by the act. Part compensation is assessed if there was a lesser impact on native title by the compensable act. Acts done before 31 October 1975 are not claimable unless they were done by the Commonwealth, which is relatively rare. Future acts affecting native title are not part of this claim process and are covered under a different process. Expert legal advice is essential. Salerno Law now have a specialist team practicing in Native Title Compensation claims. Contact Peter Matus for more information about your potential Native Title Compensation Claim. Peter Matus | Special Counsel T: +61 (7) 5575 8011 | E: p.matus@salernolaw.com.au

Salerno Law Marketing2022-07-05T11:24:32+10:00June 28th, 2021|Blog, Property & Conveyancing|

Digital Currency Exchange – Do we need to be Licenced?

Digital Currency Exchanges – Do we need to be Licenced? In 2018, we first wrote about the introduction of the newly amended Anti-Money Laundering and Counter Terrorism Laws that were expanded to regulate Digital Currency Exchanges (DCE). The amendment required all DCEs to register with the Australian Transaction Reports and Analysis Centre (AUSTRAC). As cryptocurrencies and digital assets (Digital Assets) become more mainstream, and governments and regulators evolve, so does the regulatory environment. There is a common misconception that all Digital Assets are viewed or categorised the same way, and are therefore, unregulated. However, this is not the case. In Australia, the Australian Securities and Investment Commission (ASIC) regulates financial products and markets. ASIC has provided updated guidance for DCEs stating that “if a platform deals in crypto-assets that are financial products, then the platform is operating a market and a range of Australian laws apply, including the requirement to hold an Australian market licence”.[1] The key consideration in determining whether a DCE requires an Australian market licence, is whether any of the Digital Assets traded on their exchange is captured within the definition of a financial product. A Digital Asset is likely to be categorised as a financial product if, by its substance or operation, it is a: managed investment scheme; security; derivative; or non-cash payment facility. Where a DCE enables consumers to buy/be issued or sell Digital Assets categorised as a financial product, the DCE will be required to hold an Australian market licence with appropriate authorisations from ASIC. Facilitating trades of financial products without the required licences may amount to a significant breach of the law. DCEs that facilitate the trading of Digital Assets that are not characterised as financial products are currently not subject to regulatory oversight by ASIC. At present, most DCEs facilitate the trade of a range of Digital Assets without considering the specific nature of each asset. It is important to note that Digital Assets have different functions and will be classified differently. For example, Bitcoin as a stored value will be classified differently to Ethereum as a decentralised blockchain network that facilitates the running of decentralised applications (dApps). It is likely that many DCEs have not considered the nature of the Digital Assets listed on their platform, nor have undertaken a review of whether the any listed assets constitute financial products. If you are concerned about any of the Digital Assets listed on your exchange, thinking of creating a DCE, or would like to speak to one of our Cryptocurrency Experts, the team at Salerno Law are here to help. [1] INFO 225, Australian Securities and Investment Commission, https://asic.gov.au/regulatory-resources/digital-transformation/initial-coin-offerings-and-crypto-assets/ By Krish Gosai Krish is a Corporate and Fintech Lawyer in our Financial Technology and Cryptocurrency team. With significant experience in Commercial, Fintech and Financial Services Law, in Australia and overseas, Krish brings a highly commercial and practical approach to his clients.

Salerno Law Marketing2022-07-05T11:24:32+10:00May 24th, 2021|Blog, Cryptocurrency|

Timeframes in Franchising

Timeframes in Franchising Australia's franchising industry is arguably the most heavily regulated in the world. Timeframes are critical in franchising transactions. Some of the key timeframes under the Franchising Code of Conduct (Code) are as follows: 1. Franchisees have a 7 day cooling-off period after entering into a Franchise Agreement or making a non-refundable payment to the franchisor (except on renewals, variations or transfers of existing businesses). This means that franchisees who have a last-minute change of mind or who can't secure finance can pull out of the deal. It does carry a penalty, with the franchisee being required to compensate the franchisor for a portion of the franchisor's reasonable costs. 2. All prospective franchisees must be given a current Disclosure Document with a copy of the proposed Franchise Agreement and the Code at least 14 days before entering into a Franchise Agreement. This gives them time to do their due diligence and their own investigations into whether the franchise is the right choice for them. 3. Franchisors must update their Disclosure Document annually within 4 months of the end of the franchisor's financial year (with some exceptions under the Code). Therefore, most franchisors operating on a standard Australian July-to-June financial year must complete their update by 31 October each year. A Disclosure Document must contain a statement confirming the franchisor's solvency, along with the franchisor's financial statements for the previous 2 financial years or an independent audit report of those statements. There are alternative obligations if the franchisor is new and hasn't existed for that length of time. 4. If a franchisor operates a marketing or advertising fund, the fund must also be audited within the same timeframe to update the Disclosure Document unless 75% of the franchisees who contribute to the fund vote otherwise. This will be an audit of the fund's receipts and expenses for that financial year. The audited statement and audit report must be provided to franchisees within 30 days of its preparation. 5. A franchisee has the right to request a copy of the franchisor's then-current Disclosure Document once every 12 months. The franchisor must provide this within 14 days. If the franchisor has relied on one of the exemptions under the Code and hasn't updated their Disclosure Document that year, the franchisor then has 2 months to update the Disclosure Document and provide it to the franchisee. 6. A franchisor must notify their entire franchise network within 14 days of a 'materially relevant' fact occurring. Some of these things include: a. Investigations by a public agency (e.g. ASIC) or judgments against the franchisor. b. Legal proceedings instituted against the franchisor by at least 10% or 10 franchisees (whichever is lower). c. Change of ownership or control of the franchisor, their intellectual property or the franchise system. d. The franchisor becoming externally administered. 7. If a franchisee wants to sell their business, they need the franchisor's consent. The franchisee must provide the franchisor all the information the franchisor reasonably requires to consider the sale. The franchisor then has 42 days to advise whether or not they consent to the sale. Once the franchisor gives consent they then have 14 days to withdraw it, but they must have a reasonable basis for doing so. 8. A franchisor can terminate a Franchise Agreement if the franchisor gives the franchisee a written breach notice and the franchisee doesn't remedy the breach accordingly. If the franchisee remedies the breach, the franchisor cannot rely on that breach to terminate the Franchise [...]

Salerno Law Marketing2022-07-05T11:24:33+10:00May 17th, 2021|Blog, Franchising|

Family Provision Applications – What is Fair?

Everyone knows someone, who has complained about being unfairly cut out of a family member’s Will even though they were dutiful, loving, and supportive all their lives. Fortunately for them, Australian law has a handy legislative mechanism called a family provision application, whereby they can make a claim through the courts in an attempt to vary that person’s Will to right the wrong that was done to them and get what is fair. This can be especially beneficial if this person has fallen on hard times, as a family provision application can provide a significant windfall that can be a real lifesaver these days. Alternatively, many people would have also had a conversation with a friend or family member about the flip side of this coin – this person (the testator) wants to have their Will drafted but they are worried that their insolent trouble-child, who they reasonably left out of their Will after a sudden estrangement following a big fight last Christmas, will challenge their Will. Unfortunately, no matter how much estate planning they do, the testator cannot prevent that trouble-child from spitefully bringing a family provision application to the detriment of the other beneficiaries (as their respective shares are reduced to allow for the challenger to receive a cut) after the testator is gone. This seems fundamentally unfair however every state and territory in Australia has legislation to allow disappointed beneficiaries to challenge a Will, if they are eligible. There are no uniform family provision laws in Australia that define what an “eligible person” is, but they generally are: Surviving spouse or de facto A child (including step and adopted) A dependent And they generally are not (unless they are also dependent): Parents Grandchildren and grandparents Cousins, nieces, nephews, aunts, uncles Housemates Neighbours Gypsies, tramps, and thieves Cats In either scenario, testamentary freedom is never absolute as disappointed beneficiaries, who are eligible, may apply to the court to vary the testamentary wishes of a deceased’s final Will for further or better provision from the deceased estate for their proper maintenance and support. And while, courts do not do this frivolously as their initial position is to respect and uphold the wishes of the deceased, nowadays, family provision applications can be extremely lucrative, and are becoming more and more popular, especially considering Australia’s aging population, and estates growing larger due to the surge in the property market. While it does seem unfair in some circumstances and fair in others, this is the Australian legal landscape that all testators should bear in mind and disappointed beneficiaries should explore. But what is fair? Well, that is a question for a court to decide. However, Salerno Law’s team can provide timely and lucid advice on potentially making a family provision application or defending against one.

Salerno Law Marketing2022-07-05T11:24:33+10:00April 29th, 2021|Blog, Wills & Estates|

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