Nikki

by Ted Besley

Recent case law from the Fair Work Commission shows that employers and employees should be aware that unfair dismissal isn’t always a “costs free” jurisdiction. In particular, costs will be awarded where offers to settle are unreasonably refused in conciliation and an application dismissed at hearing. Conversely, costs will not be awarded merely because an offer has been refused, particularly where unreasonably advanced by employers.

 

Generally, parties bear their own costs in unfair dismissal proceedings before the Commission. However, there is a danger that indemnity costs will be awarded against employees who refuse settlement offers and then proceed to a hearing where it is found that their case has no merit.

Importantly, being self-represented (as many unfair dismissal applicants often are) may not be a sufficient excuse to avoid a costs order being made after an unsuccessful hearing. In the cases summarised below, the Commission found that the applicants’ conduct contained an element of recklessness and delinquency in continuing to pursue their applications in disregard of the facts of each matter. On the other hand, the rejection of a series of inconsistent offers made in conciliation was found to prevent a costs order being made.

Statutory regime

The provisions of the Fair Work Act which deal with costs are found at s 400A and s 611(2).  Section 400A gives the Commission discretion to award costs in unfair dismissal matters where a party has caused costs to be incurred by acting unreasonably or making a serious omission. In addition, costs can also be awarded under s 611(2) which specifically refers to vexatious applications/responses and either pursuing or defending an application without reasonable prospects.

The Case Law

In Steven Post, the employer had made a range of offers to settle beginning at five week’s pay up to the six month statutory maximum. The applicant rejected each offer and the matter proceeded to a hearing. Rather than find that the employee has been unfairly dismissed, the Commission found that they had committed serious misconduct in the course of their employment. In the circumstances, costs were awarded on the basis that the employee should have understood that their prospects at trial were slim and rejecting the offers was reckless.

Costs were awarded against an employee for similar reasons in Colin Ferry. There, an offer to settle had been made in writing following conciliation whereby the employers specifically stated that they intended to rely on it for the purposes of costs if the application was dismissed. Of crucial importance in making a costs order against the employee was that they had received the offer after getting the employer’s material (statements, documents submissions etc) for trial. The Commission found that despite being self-represented, the employee had enough material to know that their prospects of success were weak and proceeding to hearing was reckless in the circumstances.

Thaer Barkho, however, shows that refusing offers made in certain circumstances will not justify a costs order. In that case, the employer made an offer styled as ‘first and final’ which was later made again, then increased, and then repeated. The Commission found that it was reasonable for the employee to reject offers made in this fashion and the employer’s application for costs was dismissed.

Conclusion

The cases we have summarised show that employees should carefully consider offers made in the conciliation phase of an unfair dismissal application and think twice before ploughing on to a hearing. Being self-represented and having no legal experience will not avoid a costs order being made where offers to settle are rejected and a weak case brought to hearing.

Whether you an employer or employee, the team at Just Us Lawyers have decades of experience in employment law and can guide you through the system to ensure you get the best outcome.

We’ve all been there. The stress of buying a new home can be extraordinary and this only manifests further if you discover your dream home is actually more of a nightmare but that’s where we can help. In the UK, buying a home is considered to be more stressful than bankruptcy, divorce and the death of a loved one. Having Brisbane’s best conveyancing lawyers on your side can make all the difference in ensuring that the house you buy is one you love and one that doesn’t have any nasty surprises for you once you move in. Here are a few things to keep in mind before you decide to buy your next home.

1. Location is everything
Unlike most aspects of the house, this isn’t a customisable feature (or not a cheap customisable feature anyway). When looking around the market, it’s always important to consider where the house is and where you’d want to be living in regards to work, your lifestyle and whether it will be a good fit if you’re looking to raise a family or not. The last thing you want is to find yourself resenting the purchase a few months down the line because you fell in love with the house but not the location. This is something that even the best conveyancing lawyer in Brisbane couldn’t help you with in terms of breaking the contract, so make sure you love where you’ll be living just as much as the house.

2. Lawyers can advise you on the buyer’s agreement
This is something that not a lot of people understand they’re entitled to when looking for a new home. When a buyer’s agent is involved, they tend to trust their judgement and expertise to make sure that they are getting the best deal possible for the purchase. As buyer’s agents don’t tend to be lawyers, they may be unable to answer your questions on the full scope of the document and may be unaware of extra protections you can have put in place for down the line. This means you could be left high and dry later on if something was to occur that you could have been protected against but weren’t. We’ve been in business for a long time now, so we can safely say we are some of the most experienced conveyancing lawyers in Brisbane. We’ll happily look over documents and suggest protections for you that will mean you’re prepared for the future.

3. Have the property inspected
A problem some people find themselves in after buying a home and moving in is finding out that it has termite damage or pre-existing structural damage that predates the purchase. It is always encouraged to have an expert come in and view the property to make sure you have a much clearer understanding of what’s going on behind the walls of your home. Always pick an inspector who is independent from the parties and their agents. One that will give you an honest evaluation that lets you understand the property you’re considering buying. They’ll be able to spot things you won’t and will let you know how much it will cost to fix any damage or defects, (if  repairable). As specialist conveyancing lawyers in Brisbane, we encourage all home buyers to invest in this process.

These are just three basic tips for when you’re looking to buy a new home or apartment. It is always a stressful process but you can rest easy knowing that you’ve purchased the best property for you that won’t cause any hassles in years to come. If you’re looking at buying, or selling, and are in need of a conveyancing lawyer, we’re the best in Brisbane. We’re more than happy to go over the Contract of Sale to ensure you’re getting the best deal possible. Contact Just Us Lawyers today and make an investment in your future.

By Sam Ryall

Picture this: You’re down at your regular coffee haunt on a sunny Saturday morning and the conversation between your friends turns suddenly as to who (and who doesn’t) have an up-to-date Will. You look around and notice your friends nodding their heads in the affirmative. You however, sheepishly resign yourself to the fact that you have been procrastinating on this longer than George R.R. Martin has in producing the sixth installment in the Game of Thrones series and make a mental note to rectify this urgently. Compounding your growing unease is your uncertainty as to the property you own both overseas and in Australia and how this is to be distributed if something were to happen to you. Sound Familiar? Any takers?…Well, read on.

You don’t have to be Einstein (or a legal eagle for that matter) to know the importance of having a valid up-to-date Will. However, careful attention is needed where you possess property, whether it be real property (like a house or land) or personal property (such as moveable items, bank accounts, boats and household chattels) in more than one country.

Australia is part of several international Conventions^[1] which enable Australian made Wills to be valid in other nations that have also adopted the same Convention(s).^[2] One of the key benefits of being part of these Conventions is that an internationally recognised Will can reduce the probability of a dreaded ‘conflict of laws’ situation where it is unclear which country’s laws apply to the distribution or administration of a particular asset you own. However, international Wills are subject to various requirements and formalities prescribed by both the Conventions and laws of Australia.^[3] Thankfully (for your sake!) the detail of such requirements would be our concern, should you retain us to draft your Will!

So, what should you do?

Before you are ‘lulled’ into a false sense of security that below is a ‘one stop how-to’ guide, we must point out that the following is merely a set of ideas or strategies, amongst many others, to bear in mind when you ‘take the plunge’ and finally have your Will drawn up:

1. Seek advice on drafting both an Australian Will from an Australian legal practitioner and an overseas Will from a legal practitioner in the overseas country that you own property in. Whilst perhaps slightly more expensive at the outset, this method is one of the most cost efficient and simplistic methods in the long-term when dealing with the distribution of your assets in Australia and abroad.^[4]

2. Seek advice from the relevant legal practitioner of each Will and ensure that each Will deals solely with, and is restricted to, the distribution of assets in that country.

3. Find a legal practitioner experienced with legislation relating to Wills in the country, the language required to be used in the Will and the formal requirements so to reduce the likelihood of each Will revoking each other or bringing the intestacy provisions (which apply if you do not have a valid Will or no Will at all) of that country into effect.

4. If possible, select a local executor. Due to the logistical difficulties in an executor administering an estate (i.e. selling real estate, calling in outstanding money in bank accounts) that is located overseas and the constant travel that would be required, you can avoid unnecessary costs to the estate by appointing an executor who you trust and who is local to that country.

5. Consult with an industry tax professional or accountant as to any tax implications such as Capital Gains Tax (CGT) in disposing of assets overseas or to a beneficiary that is not a resident of the country where your property is located.^[5]

Should you need any assistance in navigating the unsteady territory surrounding Wills with an international element, feel free to contact one of our friendly solicitors at our Kelvin Grove or Wilston offices who would be happy to advise you about your future Will.

[1] See Hague Convention on Private International Law 1973 and the Convention Providing a Uniform Law on the Form of an International Will 1973.

[2]Dalpont, G & Mackie, K, ‘Laws of Succession’ (2012), Lexis Nexus [22.20], Australia.

[3]Succession Act 1981 (Qld) ss 33T-33YE.

[4] Hayward, Judy, ‘Legal Wise –a Fresh Look at Estate Planning – 4 September 2008 International Estate Planning and Estate Administration http://www.wills-estates.com.au/wp-content/uploads/2012/04/22572-International-Estate-Planning-and-Administration.pdf at 13.

[5]Ibid, 14.

Due to current changes in the property market in Australia, and partially to the Global Financial Crisis of 2008, it is becoming increasingly more common for lenders to require that certain types of Buyers have a guarantor on their mortgage or loan.

A guarantor is someone who is willing to sign documents with the bank/lender that makes them liable for the Buyer’s loan or a portion of the Buyer’s loan in certain circumstances. In effect, a guarantor provides the lender with additional security in the event that the Buyer is unable to make the necessary re-payments under the terms of their loan. In practice, what this means, is that in the event that the Buyer defaults on their loan, the lender can pursue the guarantor for the missed payments or possibly the full loan amount. Guarantors are required to have existing assets, such as real property, stocks, shares, or businesses, which are used by the lender as security, in addition to the property which is being purchased.

So why would someone agree to be a guarantor? Banks have strict lending requirements, including evidence of genuine savings and large deposits. First home owners especially find it difficult to meet lending requirements and will require a guarantor to enable them to obtain loan approval.

Generally, guarantors are relatives or a business partner of the Buyer. Parents of the Buyer are the most common form of guarantor, and are able to provide additional security to the lender by virtue of having an existing investment property or substantial equity in an asset. The other most common guarantor situation occurs when a Buyer purchases a property in the name of a super fund trust, and the lender asks the Buyer to provide a personal guarantee for repayment of the debt.

If a Buyer has a guarantor on their loan, it is important to keep a few things in mind when it comes to the settlement of the property being purchased. The most important is that any guarantors to a loan also have to sign mortgage documents, and post the original documents with their signatures back to the lender. An easy mistake that many Buyers make is not ensuring that they have a longer period for the finance condition and/or settlement when their guarantors are interstate or overseas.

Another thing to ensure is that the assets that the guarantors are putting forward are in the correct name and match the current names of the guarantors – for example, if one of the guarantors has been married or divorced since purchasing their investment property and hasn’t had the title on the investment property changed, this may need to be done before the lender will settle on the loan.

Most importantly, Buyers will need to make sure that they advise their legal representation when there is a guarantor involved. This will assist in avoiding unnecessary delays in obtaining finance approval and settling on the property.

BY REMY FORSTER

Anyone who has bought or sold a property in the last few years understands how frustrating the current conveyancing system in Queensland can seem – for example, correspondence is mostly sent by fax between law firms, parties have to mail original signed documents back and forth and the money the Seller receives at settlement is still in the form of bank cheques. The good news is that conveyancing around Australia is progressively moving away from these outdated processes. In Victoria all property conveyancing is now done through electronic conveyancing, in NSW electronic conveyancing is being progressively rolled out for different types of conveyancing, and in Queensland electronic conveyancing software is now available for law firms and lenders to use.

Electronic conveyancing, or e-conveyancing, allows the parties to a conveyancing matter to conduct the process of the conveyance entirely online. The approved operator of e-conveyancing in Queensland is PEXA, and there are many benefits to having your conveyancing matter settled through PEXA whether you are a buyer, seller, agent, law firm or lender.

PEXA’s software set up means that all letters are drafted in the PEXA system, and each document is approved by the parties involved in the transaction simply with the click of a button. These documents are then signed by solicitors in the respective law firm offices via secure online signatures that only the relevant solicitors have access to. This is in place of law firms having to draft documents through their own software, mail the documents back and forth with original signatures, in reliance upon the signed documents being delivered to the right address, and then physically held until the settlement date. The online software also means that, if you are a Buyer or Seller, you no longer have to worry about these documents at all. Best of all: e-conveyancing means that the settlements are done fully online through the PEXA software. In the place of agents for all the parties involved in the conveyance having to physically attend the same location at the same time on the same day, all parties simply need to make sure everything is complete in the PEXA system by one hour before the scheduled settlement time. No physical settlements means that a settlement won’t be delayed by the settlement place being closed for a weather event, or an emergency, or that your settlement won’t go through because a bank cheque has been made out incorrectly. Following settlement, funds from an e-conveyance arrive as cleared funds in the nominated bank accounts the same day as settlement – there’s no need for someone to physically bank the cheques from settlement, or mail them out to the respective parties, because there are no physical bank cheques.

So why isn’t e-conveyancing being done for your property settlement right now? The main issue is that e-conveyancing is not mandatory in Queensland, as so many law firms and banks have not yet progressed to obtaining the required PEXA software. If all the parties to a conveyance are not registered with PEXA, or don’t wish to do the settlement via e-conveyance, then the matter must be settled the old-fashioned paper way. Apart from having the software, there will be scenarios in which your conveyance may not be able to be settled through PEXA as yet – for example, currently you may have trouble settling via e-conveyance if your purchase involves a trust or a transmission application.

Just Us Lawyers are registered for PEXA settlements and would love to assist you in settling your conveyancing matter via e-conveyancing. 

By Remy Forster

Once you have bought a property in Queensland, your name (along with the names of the other buyers) will be listed on the title to that property. When you purchase a property with two or more buyers, you have two options for how your names can be listed on the property title – either as “Joint Tenants” or as “Tenants in Common.” What many buyers don’t consider prior to their purchase is which of these options is better for them.

“Joint Tenants” is a legal way of saying that all the people on the title own the property together. In other words, one person’s part of the property cannot be separated from the rest of the property. One result of owning a property as Joint Tenants, is that if one of the people on the title passes away, their name is simply removed from the title to the property; the property title itself remains whole, just with less owners. This option is more common between married or de facto couples, as the surviving spouse will receive their partner’s portion of the property.

In contrast, by owning property as “Tenants in Common”, buyers are able to assign shares of the title to the property as they wish. This is essentially the property version of cutting different sized pieces of a pie – you can decide how big each piece of the pie should be, and how many pieces you want. For example, four buyers can own a property as Tenants in Common with equal shares (25% each), or three buyers can own the property with one person owning 70% and the other two each owning 15% respectively. Another option, which is particularly popular for taxation purposes, is for one person to own a 99% interest in the property, and for the other to own a 1% interest in the property.

The other main difference in holding property as Tenants in Common, is that should one of the property owners pass away, their share in the property is distributed according to their will, rather than it automatically passing to the surviving owners of the property. It is most common for this option to be used for investment properties, or between parties who have purchased the property due to a business relationship.

Which ownership option is the best for you will depend on your personal circumstances, such as who you are purchasing the property with, the intended purpose for the property, how much money the buyers are each contributing to the property, and whether the buyers have current and valid wills. We would also recommend that you consult with your accountant and financial advisor to determine the benefits of each option prior to signing a contract of sale to buy the property.