By Sarah Camm

For many, the office Christmas party is the social highlight of the work calendar.

For others, it can be hard work, which makes sense because, in some ways, it is work – an official work function which employees are generally expected to attend, aimed at improving employee-employer, and inter-employee relations.

Their unique feature means that, even if they are not held during usual working hours, employees who have let their hair a little too far down often find themselves in the manager’s office on Monday morning.

So – can you really get fired because of your behaviour at the Christmas party? The answer is yes!*

*sometimes

You see, while some cases are fairly clear cut (for example, Mr McDaid who threw one colleague into a pool and then initiated a fist fight with his General Manager) there can be a grey area where the official function ends and employees decide to party on.

In 2010, Mr Lawrance almost lost his job for showing off his “party trick” – opening drinks with his genital piercing.

In Mr Brown’s case, the official function had ended, however he remained in the function room for a little while before walking to the nearby balcony and urinating over it onto the unsuspecting diners at the restaurant below.  Mr Brown’s application that his dismissal was harsh, unjust or unreasonable was dismissed. The incident was near enough in time and location to the work function to be considered “connected with” his employment.

Mr Keenan’s case was another boozey office party (I’m sensing a theme). On the Monday following the event Mr Keenan’s managers were investigating 8 incidents of inappropriate behaviour, ranging from swearing at (and about) the company Directors to non-consensual surprise kisses to co-workers. Mr Keenan’s termination was found to be harsh and unjust on the following bases:

• The Sexual Discrimination Act states it is unlawful for an employee to sexually harass a fellow employee;
• While several of his acts amount to sexual harassment, these occurred after the official function had ended, in the public bars and taxi rank, not in the function room;
• Other incidents amounted to intimidating behaviour, not sexual harassment;
• Many incidents, were simply too minor to warrant termination;
• The one incident that could warrant termination that did occur during the function could still not cause a valid termination as it was a one-off occurrence where no prior warnings had been issued, and termination would be harsh when compared with other similar matters at that workplace.

However, It is unclear whether Mr Keenan was reinstated to his former position as a further hearing was ordered but not held.

Yet another case involving serious accusations of sexual harassment lit up the media headlines between 2007 and 2008. Ms Streeter was dismissed after having sex with a male colleague while 3 other employees slept in the room, and later sat in a bath with 2 male colleagues while a female colleague used the toilet. Her dismissal was initially overturned but then on appeal her termination was confirmed. This was not on the basis of the harassment itself but on the basis that when questioned by management about the events, which took place hours after the Christmas party in a private hotel room, she lied.

For similar reasons, employers’ have been held liable for employees’ injuries that occurred at the Christmas party. For example, Ms Wolmar successfully claimed compensation for injuries sustained when she fell off the portable dance floor, with the judge stating that attendance at Christmas parties is now widely considered as being “part of the job” – putting them squarely within the purview of employer’s obligations.

Liability may extend to employees’ travelling to and from the event.

However an employer’s  liability may not extend to accidents or injuries which occur because of an employee’s “frolic”, or a solo adventure which takes them outside the activities that may be expected to occur at a work event. An injury which is not reasonably foreseeable to the employer is also unlikely to be bring liability upon the employer, such as the assault of an employee by a non-employee who was attending the same venue as the work function.

To ensure no unnecessary headaches are felt following the office party, employers should set and follow some rules, which are communicated to all employees prior to the event, including:

• Setting a start and end time for the function;
• Party-goers should not be able to remain in the function room following the event;
• Employers should offer employees a way to get home;
• Responsible service of alcohol should be followed;
• Food should be available if alcohol is, as should water and other non-alcoholic drinks;
• The venue should provide a safe environment;
• If gifts are to be exchanged, these should be rated G;
• Employees must be advised that workplace policies apply – this includes sexual harassment, workplace discrimination and social media policies.

Just Us Lawyers act for employers and employees. If you find yourself involved in an employment dispute our team of employment experts will get you through the system, whatever side you are on.

As a Buyer you are entitled to do a final inspection on the property you are purchasing. The seller cannot refuse this inspection within the last 3 days before settlement and it is likely the most important of all the inspections done on the property. The ideal time to complete the final inspection is as close to the time of settlement as possible. This narrows the window for which something could go wrong.

What to look out for….

The purpose of the inspection is to ensure that the property you are purchasing has been left in the same state it was in when you signed the Contract of Sale. Some of the things to keep an eye out for are:

1. Are all the included chattels in the Contract still in the property?
2. Is there any damage to the property that was not there at the time you signed the Contract?
3. Is everything that was in working order at that time still in working order?
4. Is there any excess rubbish been left in or around the property?

Keep in mind that for very minor things it is not advisable to try and delay settlement. However, if the damage/rubbish is significant and will potentially cost you money to rectify then let your Conveyancer know as soon as possible to discuss what your options are.

What are your options??

If you find an issue that is unacceptable to you during your final inspection the first thing to do is to speak with your Conveyancer as you may have a couple of options:

• Since the Vendor is in breach of contract, you can withhold settlement until the matter is resolved. Neither party can terminate the contract immediately for such a breach but you can delay settlement and give the Vendor time to resolve the problem;
• If a delay is not what you want (e.g. you may need to move in immediately) then it may be possible to continue with settlement but to retain part of the settlement funds to the Vendor until the matter is resolved.

Thinking of buying and/or selling property –  we understand that it can be a complicated and confusing process for buyers and sellers alike. Our experienced Conveyancers will make the process efficient and less stressful for all parties involved – for the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today

By Sarah Camm

It is suggested that you review your will every 12 months to ensure it is still appropriate and reflects your current wishes. This may seem excessive, but the circumstances which can affect the validity of your Will can be life changing, momentous, stressful, exciting, devastating times. Alternatively, the change might be something you consider incredibly minor, with no impact on anyone but yourself. In either case a redraft of a dusty old document that’s out of sight in a safe somewhere is often the furthest thing from your mind.

Below is a list of events that almost everyone experiences in their lifetime. Read on to see which will mean a redraft, and which you can celebrate without calling a lawyer.

1. Moving house

Most Wills begin by stating your name, address and occupation, but a change in any of these does not necessarily mean you need a re-draft. If you die and your most recent address is different to that in your Will, your executor may need to add an extra sentence to documents that they need to fill out, however this is unlikely to cause delay or increased costs in administering your estate.

2. Buying/selling

If you have moved because you bought or sold a house you should consider:

• whether you have given the house specifically to a particular person in your Will: if you no longer own a gift you specifically left someone in your will then this gift will fail, and the person you gave it to may not receive anything!
• whether this creates a disproportionate distribution: if you leave all your houses to Jill and all your cash to Jeff, but then you use all your cash to buy more houses, Jill may receive more and Jeff less than you intended.
• whether you have given permissions or rights regarding the property: you may wish to allow the guardian of your children to raise your children in the “family home”, and in doing so may have requested your executors not sell a specific property. You should ensure that, if the “family home” changes, your Will reflects this.

3. Name changes

Ideally your Will should state your full, proper and current name as well as the full, proper and current name of your executors, trustees and beneficiaries. Similar to changes in address however, name changes may be explained by the executor in an affidavit or statutory declaration.

4. Marriage

If you get married, your existing Will is automatically revoked except for dispositions made to your new spouse. Any gifts you left to any other person will fail. Unless you execute a new Will following your marriage then your estate will be dealt with in accordance with the intestacy provisions, which may mean your wishes are not followed. The only exception is where your Will was made “in contemplation of marriage”.

5. Entering a civil partnership

This has the same effect as marriage.

6. Entering a de facto relationship

Moving in with your significant other has no effect on your existing Will. If you have not provided for your spouse in your Will they will not receive a part of your estate, and if you have been living together for 2 years, they can contest your Will if you die.

7. Divorce / ending a civil partnership

A divorce will void certain provisions of your Will, but will not void the Will altogether. The same is true where a civil partnership is terminated or found to be void. This could create some strange outcomes, and possibly lead to litigation.

8. Separation

Unlike divorce, separation from a spouse (whether you are married or not) will not usually cause your Will or any of its provisions to automatically be revoked. A disposition of your entire estate to your partner could be enforced even though you separated years ago. This may have significant negative implications, particularly where you have children (from a new or previous relationship), a new spouse or partner or other family members you intended to receive your estate.

9. Death of a beneficiary

Most Wills allow for “substitution”, so that if a person who was to receive a share of your estate dies before you or before attaining their interest, the gift passes to someone else instead. If you know a beneficiary has died, you should review your Will. Check whether your substitution clause makes sense, and that the chain of events you once thought unlikely does not have a strange, unwanted effect on your estate.

If a gift to a beneficiary fails and there are no substituted beneficiaries, then that specific gift will be passed with the residue of your estate (i.e. what is left after you have made specific gifts). If you do not have a residuary clause, or if the gift that fails is the gift of residue, then part of your estate may be distributed in accordance with the intestacy rules, which may not be in accordance with your wishes.

10. Birth of a child

You may not need to redraft your Will after having a(nother) child, but you should definitely check it. If you left gifts to your children by naming them specifically rather than leaving your estate to “any child of mine alive at the time of my death”,a child who is not named may need to apply to the Court in order to receive an inheritance.

11. Death of a testamentary guardian

You named a person who is important to you and who you infinitely trust to be guardian of your children should you die. If this person dies, it is important that you review your Will. Have you appointed a substitute guardian? Many people list a sibling as their first-choice guardian and often will list that sibling’s spouse as the substitute. Are they in a position to care for their children as well as yours, potentially as a single parent? Or you might have listed a parent of yours as the substitute guardian. Does their health, financial situation and living environment mean they are able to care for your children, potentially for a number of years? This is one of the most important decisions you have to make in your Will, and if the clause fails a difficult time in your family members’ lives could become even more terrible. You should discuss it with your family and determine who would be best placed to care for your children given a number of potential eventualities.

The above list is not exhaustive, and there are many events big and small which may have an effect on your Will and the administration of your estate following your death. You must never change your Will by simply writing on it. You should consult a solicitor to determine how best to incorporate your change in circumstances and current wishes.

A Wills & Estates solicitor can assist you to work through a number of best – and worst- case scenarios, and ensure that your Will is as certain as possible, and reflects your wishes. At Just Us Lawyers we have experience in drafting Wills for clients with a wide range of circumstances. Contact Just Us Lawyers at Kelvin Grove today to enquire about drafting a new Will that reflects your wishes today.

By Tara Holland

In recent Just Us News, Ted Besley, Special Counsel at Just Us Lawyers has successfully argued against an application for General Protections as the application was filled outside of the required 21 days.[1]  The case highlighted the importance of filing unlawful dismissal applications on time, and most importantly, the circumstances where an exception to the strict time limits might be granted.

In order to file a General Protections Application (“an application”) under Part 3 of the Fair Work Act 2009 (Cth), an employee who believes they have been unlawfully dismissed must lodge an application 21 days after the dismissal took place, not the day the dismissal took place.[2]

In Amani Rogers v Tursa Employment and Training Limited (“Rogers v Tursa”), Mr Ted Besley argued that filing an application one day late amounted to a breach of the time limits for filing an application.  It was noted, that the Commission does allow for a further period for an applicant if there are ‘exceptional circumstances’.[3]

The Applicant argued there were exceptional circumstances for her delay in filing the application, however, she could not provide a ‘credible reason’ for the whole of the period that the application was delayed. The Applicant claimed part of the reason she was delayed was she had been looking for work.  The Commission found that looking for work did not hinder her completing and lodging her application on time.[4]

It is well settled case law and restated in Rogers v Tursa that exceptional circumstances must be “out of the ordinary course, unusual, special or uncommon.[5]”

There are five criteria for exceptional circumstances:

• the reason for the delay;
• any action taken by the person to the dispute the dismissal;
• prejudice to the employer (including prejudice by the delay); and
• the merits of the application: and;
• fairness as between the person and the other person in a like position[6].

The Case for this test is Cheyne Leanne Nulty v Blue Star Pty Ltd[7] in which the full bench summerised the expression ‘exceptional circumstances’ as, ‘out of the ordinary course, or unusual, or special, or uncommon… Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered.’

What circumstances are ‘exceptional’:

• a legal representative error;[8]
• mental health (must provide relevant evidence) which directly affects capacity to make application;[9]
• representative unable to access office computers during flooding in Brisbane from Cyclone Debbie.[10]

What are not ‘exceptional’ circumstances:

• moving house and seeking advice on matter;[11]
• applicant submitted lack of legal knowledge;[12]
• unsure of dismissal date.[13]
• Looking for work[14]

Please be advised that this article provides general information regarding General Protections and is not meant to be relied upon as advice, everyone’s case is different. If you require help with a legal matter please do not hesitate to contact Just Us Lawyers.

Further information regarding General Protections can be found at the Fair Work Commission

Just Us Lawyers act for employers and employees. If you find yourself involved in an employment dispute our team of employment experts will get you through the system, whatever side you are on.

[1]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314

[2] S366(1)(a) of the Fair Work Act 2009 (Cth)- lodgment does not include the day and accordingly the Acts Interpretation Act 1901(Cth) state times is expressed as to begin after the specified day, meaning the day after the dismissal.

[3] Fair Work Act 2009 (Cth)s366 (2), Cheyne Leanne Nulty v Blue Star Pty Ltd [2010] FWA 6989.

[4]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314[22].

[5]Amani Rogers v Tursa Employment and TrainingLimited [2017]FWC 4314, 34.

[6] Ibid in Cheyne Leanne Nulty v Blue Star Pty Ltd [2010] FWA 6989.

[7] [2010] FWA 6989 [13].

[8]Edwards v Tiger Airways Australia P/L t/a Tigerair [2017] FWC 4021 (9 August 2017);Kemp v Real Pet Food Company t/a VIP Petfoods (Aust.) P/L [2017] FWC 3898 (26 July 2017)

[9]Appeal by Shellum against decision of Ryan C of 4 May 2017 [[2017] FWC 2429] Re: Grill’d P/L t/a Grill’d Healthy Burgers

[10]Hanson v Blueprint Global P/L [2017] FWC 2660 (15 May 2017)

[11]Appeal by Ibrahim against decision of Roe C of 31 January 2017 [[2017] FWC 611] Re: I Sec Security t/a ISEC [2017] FWCFB 1379 (9 March 2017)

[12]Turner v Metropolitan Fire and Emergency Services Board [2016] FWC 8036 (30 November 2016)

[13]Solanki v M-Power Community Services Inc [2016] FWC 8126 (11 November 2016)

[14]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314

Death by paperwork may be an amusing term to describe the settlement process in Queensland however in reality it is not a laughing matter.

If you do not love paperwork, deadlines and your free time or simply wish for a conveyance that is completed smoothly, it is highly recommended an experienced Conveyancer is employed for all property transactions.  Buying and selling is a major transaction, problems that may arise during settlement should be attended to with speed and accuracy.  Choosing to engage a Conveyancer will take the pressure down on a very stressful process.  It will allow you to thoroughly enjoy popping the champagne cork and celebrating your settlement.

WHAT IS A CONVEYANCER?

A Conveyancer is a legal professional who assists with property settlement and transfer of title. A Conveyancer acts as the client’s representative, and guides their clients to ensure all the necessary legal obligations are met within the relevant deadlines. It is a Conveyancer’s job to protect their clients’ rights and interests throughout the settlement process so the clients are not left open to risk and legal recourse.  Risk could include things like critical dates being missed or misinterpreted, giving the seller the right to terminate the contract and keeping the buyers deposit of thousands of dollars. Buyers can be left open to being sued for failure to meet obligations under the contract.

WHAT DOES A CONVEYANCER DO?

• Provides guidance, advice and support relating to your property transaction, including buying, selling, updating a Title, transmitting property in estate matters.
• Provides pre-contract advice regarding conditions that should be considered or included in the Contract of Sale.
• Holds your deposit on trust in the firm’s Trust Account pending settlement.
• Conducts searches on properties to ensure no hidden or concealed issues which may affect your use & enjoyment of the property or its sale price.
• Prepares all required legal documentation to successfully effect settlement.
• Calculates all relevant taxes and figures in preparation for settlement.
• Liaises with financiers to ensure the necessary documents and other requirements are arranged for settlement.
• Avoids legal pitfalls which might expose an untrained person to risks or mistakes costing time, money and STRESS!
• Acts as a representative for you throughout the transaction, including liaising with other parties as necessary to take the pressure off you.

Thinking of buying and selling property –  we understand that it can be a complicated and confusing process for buyers and sellers alike. Our experienced Conveyancers will make the process efficient and less stressful for all parties involved – for the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today

By Tara Holland

Over the past decade there has been an exponential rise in the use of social media to express oneself by comment and, more recently, by photos. The saturation of social media in everyday life has acted as a catalyst in employment cases because posting comments or photos on social media is not ‘private’ even if your settings are set to ‘private’.

As seen in recent news, ABC News article published on 7 August 2017, Facebook liking anti-government posts banned under new Public Service Policy, there is a growing climate of employee restriction in participating in any private email or social media criticism of your employer.

Fundamental questions are raised for employees and employer’s alike regarding rights and responsibilities when it comes to posting on social media. For an employer, what options do you have with regards to work related social media posts made by a current employee or social media posts by a prospective employee? As an employee or prospective employee, what rights do you have when faced with a potential issue over your social media account or posts?

In Part 1 we discuss the law around social media and current employees and in Part 2, we discuss the law in regard to potential employees and what an employer can do with social media posts/photos in respect of a potential employee.

The Law

Australia has firmly established industrial and employment laws which lay the groundwork for what rights and responsibilities are held respectively for the employer and employee. Most of those rights are contained in the Fair Work Act 2009 (Cth) (‘FWA’). [1]

Nothing in the FWA specifically mentions ‘social media’ in relation to the conduct and performance of an employee or potential employee. However, there is settled case law and the rights and duties in the FWA for employees and employers may apply to social media issues

Current Employee

The discipline that an employer carries out over an employee needs to have the appropriate weight and be consistent with action taken with other employees.  It is unlikely that an employer can summarily dismiss (sack on the spot) an employee based on a post on social media unless, it is threatening or comprises of serious misconduct.[2]  However, if there is a sufficient connection between the employee’s conduct and the employer, the posts can be linked to the workplace/staff member/employer, and they could be considered damaging to the company’s reputation, the employer may be able to lawfully dismiss that employee.

It should be noted that a post on social media between ‘friends’ has a wider audience than a conversation between a person and a colleague.  Furthermore, employees should be aware of ‘friends’ that may also be employed by the same employer.  A leading case of O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams the Good Guys[3] specifically highlights the fact that comments made in private, on a private computer are not necessarily ‘private’:

“…the fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before [the female colleague] was advised of what had occurred … the separation between home and work is now less pronounced than it once used to be”.

In other circumstances, a post may constitute enough to give a ‘warning’ for unsatisfactory performance, which has the potential to lead to dismissal. Before an employer can dismiss an employee, they must follow a specific procedure, which is  set out in s387 of the FWA and outlined below.

If the employee’s performance and behavior is constantly unsatisfactory and the employer has followed this criteria, the employee could lawfully be dismissed.

An employer must ensure that:

• they have notified the employee of the warning and specified that dismissal would be a risk if there is no improvement;
• the warning is related to the employee’s capacity or conduct;[4]
• the employee has had an opportunity to respond in relation to the issue;
• they have provided an opportunity for the employee to rectify the concern over a reasonable time period[5];
• if the workplace has more than 15 people in employ, they employ aa Human Resources person and ensure a policy and procedure is in place.

If an employer does not follow the procedures above before dismissing an employee, the employer may have unlawfully dismissed the employee. This could result in the employee filing an application for unfair dismissal with the Fair Work Commission.[6]

In short, if you are an employee and you want to have a rant about work, don’t put it on social media. Just to be safe, perhaps find another way to vent, out loud, in private.

Please note that each case can vary depending on the circumstances and whether or not an employee is covered under the FWA. This article in not written as advice but as a basic summary around social media is the workplace.  

Just Us Lawyers act for employers and employees. If you find yourself involved in an employment dispute or unfair dismissal matter, our team of employment experts will get you through the system, whatever side you are on.

[1]The general protections provisions provide protections for national system employers and national system employees, organisations and other associations of national system employers or employees. It also provides protections in some circumstances for other persons, including employers and employees in State industrial relations systems, independent contractors and the persons who engage them (principals), State registered industrial associations, and other associations of State. Explanatory Memorandum to Fair Work Bill 2008 [1334].

[2]O’Keefe William Muir Pty Ltd t/as Good Guys

[3] [2011]FWA 5311

[4]Unfair Dismissal Bench book: Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237 [16]. See also Davis v Collinsville Coal Operations,

(AIRCFB, Harrison SDP, McCarthy SDP, Redmond C, 19 November 2004) PR953370 [49]; Fischer v Telstra

Corporation Limited (AIRCFB, Ross VP, Duncan DP, Redmond C, 1 March 1999) Print R2558 [29].

[5]Fastidia Pty Ltd v Goodwin (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) Print S9280 [43]. Seealso Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 152 [58]‒[80].

[6] Some employees are not covered by unfair dismissal, see FWA s382.

TARA HOLLAND – LEGAL ASSISTANT

What is the Motto I live by?

A movie line from Anne of Green Gables has always stuck with me, “tomorrow is always fresh with no mistakes in it” and every time I feel I have had a bad day I say this to myself.

What was your first job, and what did you like most about it?

I lived and worked at a resort on an island, we always had food, cocktails and beaches 365 days a year.

You’re happiest when?

 I am at the beach with my family.

What advice would you give to a 13 year old you?

 Trust yourself and your mother does know best lol

Why did you choose the career path that you are currently in?

 I grew up seeing people struggle with access to the law and their rights and I wanted to be able to help people in those situations.

Tell us three things most people don’t know about you…

 I was in a band. I did the make up (once) for a short film and, I used to skateboard.

What places have you lived in?

 Brisbane, Byron Bay, Auckland, Mackay, Townsville, Sydney, Darwin !

What did you want to be when growing up?

 A lawyer (surprise) or a singer.

Congratulations to Tara for her recent admission as a Lawyer in Queensland!  Tara is part of the Kelvin Grove branch team & presently she is assisting our senior solicitors in various areas including Employment Law and Resource & Indigenous Law.   If you have any queries  – call/email Just Us Lawyers or complete our enquiry form for a quote today.

New ATO rules regarding Foreign Resident Capital Gains Withholding (FRCGW) Tax will apply to all properties with a price tag of $750,000 or more…

What is the Tax?

The Foreign Resident Capital Gains Withholding Tax (“the withholding tax”) was introduced in February 2016 and imposed a position obligation on purchasers of certain Australian assets to withhold 10% of the first element cost base of the asset (usually the purchase price) when acquired from a “foreign resident” vendor, and pay it directly to the Australian Taxation Office (ATO) prior to or upon settlement.

Which assets and transactions does the new regime apply to?

The new regime applies to transactions for the acquisition of certain Australian assets, with a market value of or over $2 million, including:

• Taxable Australian Real Property (TARP) – land, buildings, residential and commercial property;
• Lease premiums paid for the grant of a lease over real property in Australia;
• Mining, quarrying or prospective rights;
• Indirect Australian real property interests (interests in Australian entities whose majority assets consist of the above such property interests); and
• Options or rights to acquire property.

What are the recent changes and how does this affect property buyers in Queensland?

• Previously the withholding tax applied only to property transactions over $2 million it now applies to all properties with a price tag of $750,000 or more
• These rules are aimed at foreign investors however it affects ALL Australians selling property for $750,000 or more
• These rules apply to ALL property transactions including vacant land, residential property, commercial property, strata title and community title schemes
• Buyers of properties over the threshold are required to withhold 12.5% of the purchase price at settlement, which they then have to pay to the ATO

How to avoid paying the Withholding Tax?

• Following settlement you can apply for a tax credit for the amount that has been withheld by the ATO for the capital gains liability arising from the sale
• To avoid having the 12.5% withheld you can apply for a clearance certificate from the ATO which can then be provided to the Buyer on or prior to settlement
• If you are automatically assessed as an Australian Resident, a clearance certificate will be issued within a few days. This process can take longer for more complex applications

If you are a Foreign Resident/Investor?

The Buyer will withhold 12.5% of the purchase price if you are not an Australian Resident or Citizen. This amount will then be paid to the ATO. If a Seller receives a Variation Notice the buyer will retain the amount stated in the notice.

If you are are concerned as to the implications of FRCGW Tax on the sale or purchase of property in Queensland, do not hesitate to contact our Wilston office. If you, or someone else you know, needs help with this process, why not fill out an enquiry form, we would be happy to assist and advise over your rights and obligations with respect to your property and this tax.

Just Us Lawyers – for the best Conveyancing lawyers in Brisbane

In Queensland, once a Contract of Sale has been signed by all parties, the name of the parties cannot be changed unless a strict process is followed.

There are minor alterations that may be made via the formal agreement of both Buyer and Seller (through their Solicitors). These  include:

• Correcting misspelled names; and
• Adding or deleting middle names.

The changes that require preparation of further documentation include:

• Adding another person to the Contract of Sale.

If any of the parties to the Contract want to change their names it is the job of the acting Solicitor to ensure two things:

1.  any variations or changes made to the Contract of Sale are legally binding; and
2.  there are no adverse stamp duty implications for any of the parties.

Public Ruling DA 501.1.1 published by the Office of State Revenue provides that:

“For the purposes of assessment of Transfer Duty, the Commissioner will not recognise practises to vary essential elements of agreements, such as parties to the Contracts, by an exchange of letters”

Therefore the Contract of Sale is required to be changed by way of a Deed of Rescission which serves to terminate the original Contract of Sale on the condition that a new Contract is entered into by the buyer and seller noting the correct entities. There are often additional legal costs involved with such changes so it is recommended to try (as far as is possible) to make sure the entities on the Contract are correct the first time around.

We recommend that you seek pre contract advice from our team at Just Us Lawyers prior to signing any Contract for the Sale and Purchase of residential or commercial property in Queensland.

Just Us Lawyers – for the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today

Two topics which have many prospective Buyers mystified are Body Corporate Building Insurance, what it covers and what it does not cover, and Vacant Land Insurance, do i really need it… 

BODY CORPORATE BUILDING INSURANCE

Buyers looking to purchase a property that is part of a strata title can find information surrounding Body Corporate Building Insurance somewhat ambiguous. Often prospective buyers are under the impression that the Body Corporate Building Insurance is all inclusive – that they can rely solely on that insurance for any unforeseen circumstances or claims that may arise during the settlement process or after settlement. This in fact, could not be further from the truth and Buyers are at risk of being liable for damage caused to the property, land, or third parties, that are not normally covered by the Body Corporate Building Insurance.

While all Body Corporate Building Insurance policies will differ slightly in their inclusions and exclusions, some of the items that one could expect such a policy to include might be:

• common areas;
• garden equipment;
• wiring;
• lifts;
• swimming pools;
• car parks;
• walls;
• windows;
• gardens; and
• ceilings and floors.

Some Body Corporate Insurance policies may include cover for some additional items found in common areas. These may include things such as:

• carpets within a hallway, entrance or lobby;
• mirrors;
• indoor and outdoor furniture;
• barbecue equipment; and
• pot plants.

Items that are not normally covered by Body Corporate Building Insurance are items such as:

• Public Liability inside the Lot;
• carpets;
• light fittings;
• mobile or fixed air conditioning;
• internal window coverings;
• furniture;
• household appliances (e.g. dishwashers); and
• valuables and personal equipment.

Buyers need to contact their insurance company when purchasing a strata property to arrange insurance which covers them for:

• Internal fittings and fixtures/fitout;
• Public liability/Injury; and
• Personal property and effects.

VACANT LAND INSURANCE

It is a common misconception that it is not necessary to take out insurance when purchasing a vacant block of land. While building insurance on a vacant land block is not necessary, for obvious reasons, there are still other relevant risks that Buyers need to insure themselves against. Public Liability insurance is essential when it comes to protecting oneself from possible claims relating to bodily injury or property damage. For example, if someone were to have an accident and injure themselves on your property this type of insurance would protect you as the owner of the land against a damages claim. The insurance policy may also help to cover any legal fees incurred in the process of such a claim.

If you are already a homeowner there is a simple option when taking out land insurance and that is to add the land insurance to  your home insurance policy. Many insurers will extend coverage to include the vacant land as an umbrella policy. If you are not a homeowner then you can simply purchase a separate insurance policy for your vacant land from an insurer of your choice.

On a final but important note, when purchasing property in Queensland, whether it is vacant land or a lot within a community title scheme, the property will generally be at the Buyer’s risk from 5:00pm on the first Business Day after the Contract Date. Therefore, it is also very important for Buyer’s to consider the timing in which insurance is obtained.

Taking these simple steps will ensure you have peace of mind that regardless of what happens on your land or in your strata unit, you and your assets are covered.

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