FAQ Search Results

What are passkeys?

"Passkeys are a modern authentication technology designed to replace traditional passwords with a more secure and user-friendly alternative."

Passkeys are revolutionizing online security by offering a safer and more convenient alternative to traditional passwords.

This innovative authentication method uses public-key cryptography and biometric verification to provide a seamless login experience across devices and platforms.

Unlike passwords, passkeys are resistant to phishing attacks and data breaches, making them a promising solution to many common cybersecurity challenges.

As major tech companies and websites increasingly adopt this technology, understanding how passkeys work is becoming essential for both users and developers in our increasingly digital world.

Here's how passkeys work:

Key Components of Passkeys

Passkeys rely on several key components to function effectively and securely.

The table below outlines the essential elements that make up the passkey authentication system:

These components work together to create a secure, user-friendly authentication system.

The public-private key pair forms the cryptographic foundation, while the authenticator and biometric/PIN verification ensure that only the authorized user can access the passkey.

The WebAuthn API facilitates integration with websites and apps, and synchronization services enhance convenience by allowing passkey use across multiple devices

Public-Private Key Cryptography:

Passkeys use asymmetric cryptography, generating a unique pair of cryptographic keys for each account:

1. A public key stored on the server
2. A private key securely stored on the user's device

Biometric or PIN Authentication:

Users verify their identity using:

1. Biometrics (fingerprint, facial recognition)
2. Device PIN
3. Pattern unlock

How passkeys Function‍

Account Creation:

1. When setting up an account, the device generates a public-private key pair.
2. The public key is sent to and stored on the server.
3. The private key remains securely on the user's device.

Login Process:

1. The server sends a challenge to the user's device.
2. The device prompts the user for biometric/PIN authentication.
3. Upon successful local authentication, the device signs the challenge with the private key.
4. The signed challenge is sent back to the server.
5. The server verifies the signature using the stored public key.

Cross-Device Usage:

1. Passkeys can be synced across devices using secure cloud services (e.g., iCloud Keychain, Google Password Manager).
2. Users can authenticate on new devices by approving the login on a trusted device nearby.

Passkeys function through a combination of cryptographic processes and user authentication methods.

The table below outlines the key steps involved in passkey creation and authentication:

This process ensures secure, passwordless authentication without transmitting sensitive information. The use of public-key cryptography and local biometric verification provides a robust defense against common security threats while simplifying the user experience.

Security Benefits

Passkeys offer significant security advantages over traditional passwords, addressing many common vulnerabilities in online authentication.

The table below highlights key security benefits of passkey technology:

These security enhancements make passkeys a robust solution for protecting user accounts and sensitive information. By leveraging public key cryptography and local device authentication, passkeys significantly reduce the attack surface for common cyber threats, providing a more secure online experience for users and organizations alike.

User Experience Improvements

Passkeys offer significant improvements to the user experience compared to traditional passwords.

The table below highlights key user experience enhancements provided by passkey technology:

These improvements address many common frustrations associated with traditional passwords, such as forgetting credentials or dealing with password resets. By leveraging familiar device authentication methods, passkeys provide a more intuitive and efficient login experience across various services and applications . This enhanced usability, combined with improved security, makes passkeys an attractive option for both users and service providers looking to streamline authentication processes.

Implementation and Support

• Major platforms (iOS, Android, Windows, macOS) and browsers (Chrome, Safari, Firefox) support passkeys.
• Websites and apps need to implement passkey support, which is growing but not yet universal.

Passkeys represent a significant advancement in online security, offering a balance between enhanced protection and user convenience.

As adoption increases, they are poised to become the standard for online authentication, potentially replacing traditional passwords in the near future.

FIDO® Compliance

Passkeys are built on the WebAuthentication (WebAuthn) standard, which is part of the FIDO2 specifications.

This means that all passkeys adhere to the FIDO® Alliance's standards for secure, passwordless authentication.

The FIDO® (Fast IDentity Online) Alliance is an open industry association launched in February 2013 with the mission of developing and promoting authentication standards to reduce reliance on passwords.

Source: Perplexity AI Page curated by James D. Ford

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

‍

Ahoy there!

It is my genuine pleasure to welcome you to the Blue Ocean Law Group a.k.a. BLUEOCEAN.law

We are Different on Purpose

Blue Ocean Law Group is designed to be different, starting from a blank canvas using the principles of Blue Ocean Strategy®.

If you are thinking that we are unlike any other law firm you have encountered to date then we have succeeded in differentiating ourselves from a traditional law firm.

'Every day, clients are faced with a lot of boring stuff - a lot of brown cows - but you can bet they won't forget a Purple Cow!

Purple Cow describes something phenomenal, something counterintuitive and exciting and flat-out unbelievable.

In his best seller, Seth Godin urges you to put a Purple Cow into everything you build, and everything you do, to create something truly noticeable.

It's a manifesto for anyone who wants to help create products and services that are worth marketing in the first place.'

When your business brand + the way it is positioned stands out boldly, it attracts attention… and lowers your marketing costs.

‍Blue Ocean Strategy® describes this as a key enabling concept using the term "Differentiation".

Welcome to Blue Ocean Law Group & our vision of the future delivery of legal services.

Embark on your legal journey, with a Deep Dive of our website ...

As you explore this [700+] page website, I recommend you start by:

1️⃣ Clicking on the blue switch on our home page to toggle between 'blue and red ocean mode';

2️⃣ Watching the Blue Ocean Strategy® videos; and

3️⃣ Taking our Free Legal Health Checks ❤️ [Australia].

I personally hope that you discover tons of value and start to change your opinion about lawyers for the better.

Our Expansion Plans ... A Work in Progress!

⭐️ Blue Ocean Law Group are currently in the process of expanding our legal service offerings from Australia to New Zealand and California, and in due course the UK under the Australia-UK Free Trade Agreement.

Tip #1 ➲ Google Translate

If English is not your native language and you would prefer read our website content using your own, you will most likely be able to effectively navigate our entire website by using Google Translate which offers a selection of [100+ languages].

When Google Translate displays its translation our website's top menu is removed.

If you scroll down to the bottom of the translated webpage you will find you will be able to use our website footer to navigate our website (as it effectively mirrors all the items in our top menu).

Tip #2 ➲ You can Create Legal Documents (or at least start) using your Mobile Phone

We have designed our website so that after you start creating a legal document using your mobile phone, all you need to do is rotate your phone to a horizontal position (in other words landscape mode) to continue the process.

If you run out of time or find it difficult to enter information using your mobile phone, you can save your work and a link will be sent to your email address that you can use to resume the process once you are at your laptop/desktop.

‍Credits:

This FAQ was created by James D. Ford Esq., GAICD CIPP/US CC | Principal Solicitor, Blue Ocean Law Group℠.

State of California Bar Number: 346590

Thank-you for your patronage & support!

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If you are seeing this message, you have been directed to this FAQ webpage after successfully Logging Out.

Note: For now, this page is public so you may also have stumbled across this page within our New Client FAQs.

In the future we may decide to make this FAQ page visible only to authorised users who have successfully logged out!

Your feedback is greatly appreciated!

Our aim is to deliver remarkable experiences for our users, clients and subscribers.

To do this we need your honest and continued feedback.

➲ Did you go passwordlesss! Was the experience seamless?

➲ What user experience improvements can we provide?

➲ Do you have any requests for new features or exclusive content?

Where to leave your Feedback?

➲ Help us spread the word. Share our links on social media + add your appreciation to our Wall of Love!

➲ Add comments in the section at the bottom of our blog articles;

➲ Contribute to the group chat Secure Suggestion Box here on Signal; or

➲ Tell us your feedback privately next time you Contact Us.

Login again to check for updates

Please login again regularly for the latest news about the Phase 2 improvements which include:

➲ A more personalised user experience; and

➲ Free trial access to exclusive fremium content.

‍Credits:

This FAQ was created by James D. Ford Esq., GAICD CIPP/US CC | Principal Solicitor, Blue Ocean Law Group℠.

State of California Bar Number: 346590

Congratulations!

You have successfully "Registered as a User" +/or "Logged In" without the need to Setup or Supply a Password

If you are seeing this message, you have been directed to this FAQ webpage after a successful passwordless registration +/or login to the BLUEOCEAN.law website.

Note: For now, this page is public so you may also have stumbled across it within the New Client FAQs.

In the future we may decide to make this FAQ page visible only to authorised users who have successfully logged in!

Phase 1: Passwordless Authentication is Operational ➲ Complete

Implementing passwordless signup & login is just the beginning, i.e., Phase 1.

27 June 2024 ➲ Breaking News! ... "Passwords R.I.P"

Let's face it, we all hate passwords, not to mention Authenticator Apps!

There is a better way. It's called a Passkey.

For more information read our FAQ: How do FIDO® compliant passkeys work to replace traditional passwords with a more secure and user-friendly alternative?

Using a Passkey is highly secure, eliminating the need for both a password and an Authenticator App.

You can now register with and login to BLUEOCEAN.law's website using a passkey.

Passkeys are automatically generated - if required, so you don't need to already have one).

Alternatively, you can use your existing Google | Apple | Microsoft login.

Try it for yourself, the links to signup/login are on the HOME page and under the top menu item ... STAY SECURE.

Why Passkeys are the future of CyberSecurity

The following answer has been extracted from the LinkedIn article by Tertius Wait dated 28 June 2024 called "Say Goodbye to Passwords: Googles New Passkeys Are Here"

"Passkeys represent a robust defense against phishing and other security threats by tying authentication to a physical device specifically authorized by the user. Unlike passwords, which can be easily phished or forgotten, passkeys leverage biometric data or a device-specific PIN that never leaves your device, ensuring both privacy and security.

This approach aligns perfectly with the ISC2's security principle of "something you know, something you have, and something you are."

Traditional passwords are "something you know," easily compromised.

Passkeys combine "something you have" (your device, specifically authorized by you) with "something you are" (biometric data), creating an exceptionally strong and secure authentication method."

With Google's passkeys, the future of online security is not just on the horizon—it is here.

This innovative approach transforms the way we think about logging in, making it easier and infinitely more secure.

By harnessing the power of biometric data and device-specific security features, passkeys provide a seamless and secure experience like never before.

I highly recommend starting to use passkeys today.

They will simplify your life and make your accounts significantly more secure.

Passwords are becoming relics of the past, passkeys are the future.

Embrace this change and step into a more secure and convenient digital world."

About the Author of the Article: Tertius is a Cloud Engineer at iiDENTIFii, ISC2 Cyber Security Certified, and an Identity Verification Sentinel. Passionate about the latest trends in IDV and cybersecurity, Tertius writes to educate and empower readers to protect themselves in an increasingly digital world.

Next Steps

1️⃣ Configure your LOGIN PROFILE SETTINGS

Once registered or logged in, if your scroll down slightly on your HOME page you will see a LOGIN PROFILE SETTINGS button.

Alternatively, at anytime go to the top menu item ... START > LOGIN PROFILE SETTINGS.

Within LOGIN PROFILE SETTINGS you will be able to do the following:

➲ Fix your name (if the default name taken from your email address currently appearing at the top of this HOME page needs adjusting);

➲ Change your email address;

➲ Add up to 6 backup FIDO® USB Security Keys;

➲ Add Social Identity Logins for Google|Apple|Microsoft; or

➲ Add a password and a time-based one-time authentication code. DANGER: Proceed with caution.

2️⃣ Join the Growing Global Community of Passkey Advocates

Now that you have seen for yourself that the technology to eliminate the need for passwords exists and works well, we encourage you to join the growing global community of Passkey advocates to help make your online experience much more enjoyable and secure.

Here is a link to view a community-driven index of websites, apps and services that offer signup/login with Passkeys.

Phase 2: Improved User Experience + Exclusive Freemium Content ➲ Under Development

Phase 2 has just commenced and is a work in progress.

Please check back here regularly for the latest news about planned Phase 2 improvements.

Thank you for taking the time to register and try out our passwordless login experience.

Start looking forward to a more personalised user experience with free access to exclusive freemium content.

‍Credits:

This FAQ was created by James D. Ford Esq., GAICD CIPP/US CC | Principal Solicitor, Blue Ocean Law Group℠.

State of California Bar Number: 346590

Our 'Elevator Pitch' ...

➲ Why we offer Free Legal Health Checks!

"Before a client needs to deal with any major life event or disputes (the inevitable vicissitudes of both business & personal life) ideally they need to consult a lawyer to ensure they get their legal affairs in order.

The evidence suggests that even though most clients know it is important, more than 70% typically deliberately avoid engaging a lawyer.

Instead they either do nothing hoping for the best or do their best to try to patch together a subpar solution themselves.

If personal & business legal affairs are allowed to persist in disarray, this is a surefire recipe for the possibility of a devastatingly expensive, long and emotionally draining legal battle.

Because once problems arise it is often too late to take proactive measures.

BLUEOCEAN.law have built a secure online solution that helps anyone obtain initial guidance without the need to speak to a lawyer, using our Free Legal Health Checks [Australia] for both personal and business matters, together with our market-leading [700+] page website providing prospective Clients with [Self-Service] Legal Documents, Legal Wizards, Quizzes, FAQ & innovative solutions 24/7 from anywhere on any device.

Our Legal Network provide support as and when it is needed."

⭐️ We are in the process of 'Charting New Markets' in New Zealand & California.

Source: Blue Ocean Opportunities in the Australian Legal Profession

This Elevator Pitch was developed using a template suggested in a Linked In post by Ash Maurya.

‍Credits:

This FAQ was created by James D. Ford Esq., GAICD CIPP/US CC | Principal Solicitor, Blue Ocean Law Group℠.

State of California Bar Number: 346590

What does a Virtual Intern do at Blue Ocean Law Group?

Collaboration at your Own Direction

At Blue Ocean Law Group you are the architect of how you spend your time as a Virtual Intern.

We only ask that you consider and communicate your preferences so that we collaborate to determine the best way to proceed.

Nearly all Virtual Interns we have had enquire hold a pre-conceived notion that they will be completing traditional legal tasks for traditional clients such as drafting legal documents and conducting legal research.

Whilst this is certainly possible as we do complete traditional legal tasks (for our clients) as required from time to time (as there will always be complex legal tasks that arise which are incapable of any kind of automation) this is not the primary focus at Blue Ocean Law Group and consequently of our Virtual internships.

Virtual Intern Objectives

We aim to provide our Virtual Interns with at least the the following:

⭐️ Freedom to decide what you would like to spend your time on;

⭐️ Beneficial Mentorship;

⭐️ Opportunity to develop deep legal skills across multiple legal jurisdictions in areas of law of interest to you;

⭐️ Legaltech skill development including an iterative development mindset; and

⭐️ Showcase opportunities for your work on our website to help you with your future legal/legal tech career.

In one instance, this blog article which was written by one of our Virtual Interns was of such quality we facilitated publishing the article in Legal Business World.

Learning to be a Proactive Lawyer

The main focus at Blue Ocean Law Group is on proactive lawyering.

This typically involves the automation of [Self-Service] legal documents and the design and construction of online resources including legal wizards, quizzes, brochures, FAQ etc. to support our Clients to help themselves as much as possible.

To be able to embed lawyer logic into each legal process requires a high level of legal sophistication.

Instead of drafting a legal document for an individual Client's circumstances (one at a time) Blue Ocean Law Group proactively consider a large range of potential scenarios across multiple legal jurisdictions then decide upon what how to best distinguish each scenario and what variations are required in the final legal document.

Not all legal matters will be capable of being catered for, however our experience to date has shown that many legal matters will.

Even if the legal matter is not capable of being fully dealt with in this way, automation of the collection and organisation of information pertaining to each legal matter are nearly always made more efficient.

Tomorrow's Lawyers: An Introduction to Your Future

In the majority of legal matters a solid DRAFT legal document can be generated which can dramatically reduce the overall amount of time and expense involved which directly addresses the "More for Less" challenge laid down by Richard Susskind in his book "Tomorrow's Lawyers: An Introduction to Your Future" now in it's 3rd edition whilst simultaneously making quality proactive legal services available to those who could not previously afford it.

"Tomorrow's Lawyers identifies new opportunities for lawyers, new ways of helping clients and the community.

It enjoins its readers to become involved in building the systems that will replace outmoded forms of legal work.

It argues that it is both a privilege and an obligation for tomorrow's lawyers to embrace and bring about change.

A must-read for legal undergraduates, aspiring and young lawyers, senior practitioners, leaders in law firms and legal businesses, law professors and law teachers."

Proceeding in this way requires a mammoth effort.

At the same time it represents a huge learning opportunity for our Virtual Interns.

How long does a Virtual Internship last?

We have not set a fixed duration for our Virtual Internships.

Both the amount of work and the timeframe can vary and continue for as long as we are both obtaining value from the arrangement.

How can you Get Started regardless of whether you become a Virtual Intern?

The following links are a great place to start:

FAQ: Volunteer Virtual Internship + PLT Placement Mentoring

Mentee Manual: Our Top 10 Ideas to Get Started!

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Steps to Decide Whether to Apply ...

1️⃣ Understand What is Involved

We work differently at Blue Ocean Law Group and consequently if we decide to collaborate with you there is a fairly high chance that your time as a Virtual Intern will be nothing like what you currently imagine.

2️⃣ Conduct your Own Due Diligence

Before you spend anytime preparing an email/Cover Letter to apply for a Virtual Internship/PLT Placement we strongly recommend you first conduct an adequate amount of your own due diligence.

We recommend you spend some more time researching us and the work we have had our Virtual Interns complete.

You can view work completed by our Virtual Interns by searching for the term “intern” on our website.  

One of our objectives is to provide our Virtual Interns with an opportunity to work on projects that interest them and allow them to showcase their projects on our website.

In one instance, this blog article which was written by one of our interns was of such quality we facilitated its publication in Legal Business World.

Here are some links to start:

FAQ: Volunteer Virtual Internship + PLT Placement Mentoring

Mentee Manual: Our Top 10 Ideas to Get Started!

3️⃣ Tomorrow's Lawyers: An Introduction to Your Future

Read Richard Susskind's book "Tomorrow's Lawyers: An Introduction to Your Future" now in it's 3rd edition.

"Tomorrow's Lawyers identifies new opportunities for lawyers, new ways of helping clients and the community.

It enjoins its readers to become involved in building the systems that will replace outmoded forms of legal work.

It argues that it is both a privilege and an obligation for tomorrow's lawyers to embrace and bring about change.

A must-read for legal undergraduates, aspiring and young lawyers, senior practitioners, leaders in law firms and legal businesses, law professors and law teachers."

4️⃣ Are you an Enterprising + Curious Self-Starter?

Over the last few years, we have worked with a select group of enterprising and curious young lawyers/law students on an unpaid volunteer virtual internship + mentoring basis.

Our Virtual Internships are unstructured.

You will only benefit to the extent that you are enterprising, curious to learn and capable of self-motivation + direction.

5️⃣ Your Preferences

Blue Ocean Law Group CANNOT accomodate any application for a Virtual Internship/PLT Placement that indicates a preference to just do what you are told to do to help us complete traditional legal tasks such as drafting legal documents and conducting legal research for our Clients.

Whilst we do complete traditional legal tasks (for our clients) that arise from time to time, our main focus is on the proactive automation of typical legal documents and the construction of resources including legal wizards, quizzes, FAQ etc. to support our Clients in using these.

What we do involves a much higher level of legal sophistication (a large number of potential variations in the final legal document) and a much broader perspective (multiple legal jurisdictions) than is typically the case for an individual client’s matter.

We embed lawyer logic into each process.

Doing this requires mammoth effort and represents a huge learning opportunity if you decide you would like to contribute.

6️⃣ Try Out What We Currently Offer Our Clients + Prospective Clients for FREE!

The best way to start to understand what is involved in the delivery of proactive legal services is to try out what we currently offer for free via our website.

⭐️ If we have not yet seen any evidence in our systems that you have created any FREE Legal Documents or tried any of our FREE Legal Wizard then your application will be automatically placed on hold. Once you have tried our FREE resources, please contact us to confirm that you still wish to proceed with your application and advise us of any amendments you would like to make to your application.

➲ Perhaps start by trying out our Free Legal Health Check, or our FREE Director ID Wizard.

7️⃣ Prepare + File your Application

If you would like to make an application for a Virtual Internship/PLT Placement to assist us with tasks that you find of interest, that is, "Your Preferences*" then:

➲ Please send an email to jdf@blueocean.law with your Cover Letter attached requesting a Virtual Internship/PLT Placement.

⭐️ Note: Include your C.V. + Academic Transcript.

* We don’t direct you to complete any tasks that you do not feel are of interest to your development as a legal professional.

8️⃣ Informal Interview

If your application is successful, we will contact you to arrange an informal interview.

🔥 BONUS ➲ Questions to Ask Prospective Employers

The following list of questions has been extracted from the 1st edition of "Tomorrow's Lawyer's" chapter entitled "Questions to Ask Prospective Employers". The author warns not to ask all these questions in the one sitting.

We advise that it would be best to pick and choose a few of the most appropriate questions given the results of your due diligence, any concerns you may have and the overall context of the situation.

Potential Questions to Ask a Prospective Employer

➲ Do you have a long-term strategy?

➲ What will legal service look like in 2035?

➲ Are you comforted by other law firms' lack of progress?

➲ What are you preferred approaches to Alternative Sourcing?

➲ What role will IT (Information Technology) play in Law Firms of the Future?

➲ Do you have a Research & Development Capability?

➲ If you could design a Law Firm from scratch, what would it look like?

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

We CANNOT assist with any requests for traditional High School compliant in-person Work Experience Placement

Our standard response to such requests is as follows:

"Thank you for being so interested in work experience at Blue Ocean Law Group.

Unfortunately, as a small boutique start-up Digital Law Firm we don’t have the capacity to accommodate in-person Work Experience Placements for High School Students.

If you are interested in learning more about the law here is a link to an article I wrote that aims to provide some initial guidance that can be followed anytime online.

We wish you the best in your future career.

Kind regards,"

Learning more about what it means to be a Modern Lawyer at a Digital Law Firm

As Blue Ocean Law Group are a Digital Law Firm it may be possible to alternatively offer a small number of high school students a Virtual Internship.

It is unlikely that a Virtual Internship will be meet the requirements your High School imposes for your Work Experience Placement which typically requires a short intensive full-time in-person placement in a permanent physical office environment.

Nevertheless, if you are still motivated to learn more about what it means to be a lawyer at a modern Digital Law Firm we encourage you to spend time interacting with the FREE legal resources our lawyers have created and made available via our website (via any digital device incl. your mobile phone).

Further, to learn more about our Virtual Internships please read our other FAQ's on the topic.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is #NewLaw?

The following has been extracted from NewLaw Fundamentals Q&A by Anusia Gillespie on August 4, 2021:

NewLaw is a mindset. It is a movement. NewLaw’s enemy is the adage: “because that’s the way we’ve always done it.”

Whether coined by Eric Chin, see Post 242, or Jordan Furlong, see Furlong, “An Incomplete Inventory of New Law,” Law21, May 13, 2014, the original definition circa 2013 was: “any model, process, or tool that represents a significantly different approach to the creation or provision of legal services than what the legal profession traditionally has employed.”…

The concept has evolved to focus on the source of true power and change in the profession – people. Models, processes, and tools fail if not created, or at least embraced, by the people who power the legal system. NewLaw fails without open and informed minds. The form of output, whether a new business model, regulation, or legal technology, is secondary. In fact, strike the first part of the 2013 definition and we capture this nuance for today’s understanding.‍

NewLaw: A significantly different approach to the creation or provision of legal services than what the legal profession traditionally has employed.

What is a True NewLaw Firm?

Since the term NewLaw was coined in 2013, alongside true NewLaw Firms there has been a continuous procession of traditional law firms rebadging themselves to claim they are a NewLaw firm.

This begs the question: What is a true NewLaw Firm?

To help answer this question, the following has been extracted from the article "What is a True NewLaw Firm?" by Rebecca Lim | December 7, 2016

In an age of disruption, BigLaw or traditional large law firms face increasing competition from rapidly evolving NewLaw providers. But what does NewLaw actually mean, and how do these firms differ from their more traditional competitors?

Whilst the legal profession was for decades conservative + resistant to using new or "disruptive" technologies, it seems as if all at once, a lightbulb was turned on, and the buzz and potential of #legaltech or put more simply, the use of technology to more efficiently + effectively deliver legal services has been ushered in a new era of exciting fast paced change in the legal profession.

My personal observation is that whilst there has been adoption of #legaltech by traditional law firms, this has been mainly done behind the scenes where clients do not see what is happening.

Adopting new technologies in this way does not represent a significant culture change for traditional law firms.

What they are doing is low-risk.

If something goes wrong, they can step in and rectify the problem without the client ever knowing there was a problem.

If they are successful in making incremental improvements, in the end it doesn't change a great deal.

In my opinion, traditional law firms are still going about the business of law in the same way they have in the past.

One of the Red Ocean Traps: The mental models that undermine market-creating strategies is to confuse technology innovation with market-creating strategies.

Using the latest technology alone does not change traditional culture, structures and thought processes.

To differentiate a true NewLaw Firm we need to see evidence of changed thinking, and with that changed culture, rather then simple window-dressing and wordsmithing.

What is Blue Ocean Strategy® ?

Blue Ocean Strategy® represents a change in mindset that is in total alignment with the updated concept of #NewLaw as a mindset.

Blue Ocean Strategy ® offers a strategic framework to help break free of traditional legal profession thinking ....

Blue Ocean Law Group has been designed from a blank canvas using Blue Ocean Strategy®

In a nutshell, we think differently, therefore we have created unique offerings which align with our vision for the future of the Legal Profession.

For a deep dive into what this will continue to entail please read my article: Charting the future of the Legal Profession: A Blue Ocean Perspective.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What to Expect from Your California Licensed Attorney

You can expect your attorney to:

• Act ethically and abide by the Rules of Professional Conduct and the California Business and Professions Code.
• Represent you zealously and use all lawful and ethical means to present or defend your case.
• Not reveal anything you tell them in confidence. There are several exceptions to this rule, for example, certain life-threatening situations.
• Allow you to make the final decisions regarding how your case will be handled.
• Exercise independent professional judgment on your behalf.
• Keep you updated on your case.

What to Expect Regarding Fees and Billing

You and your lawyer should agree on what you will pay and which services will be provided.

By law, fee agreements with your lawyer MUST be in writing when the lawyer expects fees and costs for your case to total $1,000 or more.‍

Read more

Here are key things to know about fees and billing:

How a lawyer decides what amount to charge

• Lawyers consider various factors when setting their fees.
• A lawyer who is well-known in a certain area of the law might charge more than someone who is not.
• A lawyer also may consider the complexity of the case and the amount of time your matter could take.

How often your attorney will bill you for services

• With the exception of contingency fee arrangements (see below), you can expect to be billed monthly by your attorney.

Types of fee arrangements

Attorneys use different types of fee arrangements.

These are the most common types of fee arrangements used by attorneys:

• Fixed fee or standard fee.
  ‍Commonly used for routine legal matters, such as preparing a simple will. Before agreeing to a fixed fee, find out what it does and does not include, and if any other charges may be added to the bill.

• Hourly fee, which will can vary among lawyers.
  ‍Ask the lawyer to estimate the amount of time your case will take, so you understand what your total costs may be. Remember that circumstances may change, and your case may require more hours than the lawyer initially expected.

• Retainer fee.
  ‍A retainer can mean different things to different people. Make sure you understand your retainer agreement. ‍

          Read more

• Contingency fee.
  ‍This type of fee is often used in accident, personal injury, or other types of legal cases in which someone is being sued. ‍

          Read more

• Statutory fee.
  ‍The cost of certain probate and other legal work is set by statute or law. For these proceedings, a court either dictates or MUST approve the fee you will pay.

What you should know about a fee agreement

‍By law, fee agreements with your lawyer MUST be in writing when the lawyer expects fees and costs for your case to total $1,000 or more.‍

          Read more

‍Additional costs you may have to pay

‍In addition to their fees, your lawyer will charge you for other costs of your case, and you will be responsible for paying these costs even if your case is not successful. Costs can add up quickly, so it is a good idea to ask the lawyer in advance for a written estimate of what the costs will be, and whether you will have to pay such costs directly or if you will be reimbursing the lawyer for such costs paid on your behalf.

You may also ask to approve costs over a certain amount in advance.‍

Read more

‍What to do if you can’t pay

If you cannot afford to pay your lawyer’s bill, try to work out a payment plan or another arrangement with the lawyer.

If you cannot reach an agreement on how to handle the problem, the lawyer may be entitled to stop working on your case or even withdraw as your attorney. You may ask if the work can be temporarily postponed to reduce your bill.

If you believe your attorney’s bill contains errors or unauthorized charges, contact the attorney immediately and try to resolve the problem.

How to Work with Your Lawyer

These simple tips should help you develop a positive, productive relationship with your lawyer:

• Make sure you and your lawyer have the same goals.
• Give your attorney all the information and documents necessary to understand your case, including information that could be damaging to your case or may seem unimportant to you.
• Make sure you are comfortable with the attorney’s working style, such as whether you will be working with other people in the attorney’s office, or how the attorney prefers to communicate, such as by email, text messaging, phone, or in person, and how often to expect updates.
• Let the attorney know if you would like to receive copies of letters and documents prepared for your case.
• Make sure you have a clear picture of the expected timetable for your case and the steps involved in handling it. However, realize that it may not always be possible to predict the time required. If you are involved in a lawsuit, for example, the court’s schedule will influence how long your case will take.
• Make sure you understand and agree with the attorney’s billing practices.
• Communicate any questions or concerns to the attorney and listen to their responses.

However, problems could still arise. In such instances, help is available.

How to Avoid Problems with Your Attorney

You can help avoid problems with your lawyer by taking these steps:  

• Make sure you are working with a licensed lawyer. Lawyers MUST be licensed to practice law in California, and every licensed California lawyer has a State Bar number. Ask your lawyer for their State Bar number.  
• Use the Attorney Search feature on this website to verify that the attorney is licensed and to check for any disciplinary history.
• Understand exactly what your lawyer will be doing for you and what it will cost, and get your fee agreement in writing.
• Provide your attorney with all information related to your case, even information you think may be unimportant. This includes your current address and contact information.
• Provide your lawyer with all documents related to your case. Keep copies for your records.
• Ask the lawyer to estimate how long your case will take. Be aware, however, that unexpected developments can delay the process.
• Ask your lawyer to keep you updated on your case. You might ask the lawyer to send you copies of letters and any official documents filed in court as well.
• If you do not agree with your lawyer’s advice, let them know, and listen to their explanation.

If you are not satisfied with the answers, ask another lawyer for a second opinion.

You may also consider hiring another lawyer, although this may delay the resolution of your case.

Source: https://www.calbar.ca.gov/Public/Free-Legal-Information/Working-with-an-Attorney

Further Reading

About retainer fees

• A retainer fee can be used to guarantee that the lawyer will be available to take a particular case. With this type of agreement, the client would be billed additionally for the legal work that is done. If the fee agreement is a nonrefundable retainer agreement, you may not be able to get your money back, even if the lawyer does not handle your case or complete the work.
• A retainer fee also can mean that the lawyer is “on call” to handle the client’s legal problems over a period of time. Certain kinds of legal work might be covered by the retainer fee, while other legal services would be billed separately.
• Finally, a retainer fee is sometimes considered a down payment on legal services that the client will need. This means the legal fees will be subtracted from the retainer until the retainer is used up. The lawyer would then bill you for any additional time spent on your case or ask you to pay an additional retainer.

About contingency fees

• Contingency fees mean you will pay the lawyer a certain percentage of the money you receive if you win the case or settle the matter out of court.
• If you lose your case, the lawyer does not receive any payment from you.
• However, whether you win or lose your case, you will have to pay some or all of the court costs and other expenses, which can be quite high. Ask the lawyer for an estimate of such costs before you get started.
• If you agree to a contingency fee, MAKE SURE sure the written fee agreement specifies the lawyer’s percentage and whether their share will be figured before or after other costs are deducted.
• Contingency fee agreements MUST also state whether you will be required to pay the lawyer for related matters not specified in the fee agreement, which may arise as a result of your case.

• In most cases, the agreement also MUST note that the attorney’s fee is negotiable between the attorney and the client. They are not set by legal statute or law.

About fee agreements

• Here are some questions you may want to ask about your fee agreement:
• How will the lawyer bill for their time?
• Who else might be working on the case — an associate lawyer, legal assistant, paralegal? How will their work be billed?
• How will other costs and expenses, as opposed to the lawyer’s fees, be paid?
• What is the lawyer’s estimate of the total charges?
• The final agreement should include a list of services the lawyer will perform for you and the type and amount of fees you will be expected to pay. It should also include an explanation of how the other costs and expenses will be handled and billed, including interest or charges for unpaid amounts.
• Before you sign a fee agreement with your lawyer, make sure you understand all of the terms and requirements.
• The lawyer may have a pre-printed fee agreement. If you don’t approve of any part of the agreement, ask the lawyer to make revisions or to draw up a new agreement better suited to your case.
• A fee agreement may also list your obligations as a client — to be truthful, for example, and to cooperate and pay your bills on time.

Additional costs you may have to pay

• Certified shorthand reporters’ charges for testimony at depositions and trials and for transcripts.
• Copying and faxing costs. Lawyers also may charge for staff time spent on these tasks.
• Experts and consultants’ charges. These costs generally relate to any time spent evaluating the case and testifying in court.
• Filing fees, which are required by courts before they will accept legal papers.
• Investigators’ bills. Investigators may gather information related to the case.
• Jury fees and mileage costs. These are paid to jurors in civil cases in amounts set by law. The party requesting the jury must pay such expenses in advance.
• Postage, courier, and messenger costs for mailing, shipping, or delivering documents.
• Service of process fees charged by individuals who locate parties and witnesses and deliver legal papers to them.
• Staff time for services related to your case.
• Telephone bills.
• Travel expenses for the lawyer when traveling on a client’s behalf. These charges can include gas, mileage, parking, meals, airfare, and lodging.
• Witness fees and mileage charges. The individuals who testify at depositions and trials receive fees in amounts set by law. You also may need to pay travel expenses for witnesses.

Your lawyer may charge you for other costs as well. Make sure you understand all of the costs for which you will be responsible. Ask the lawyer if you will have to pay such costs directly or if you will be reimbursing the lawyer for such costs paid on your behalf.

Contact us for Clarifications

For questions or additional information about James D. Ford Esq.'s legal services in California (delivered via Blue Ocean Law Group℠), please contact us by clicking here or click here to book a consultation.

Source: State Bar of California Website ➲ Working with an Attorney.

‍Credits:

This FAQ was created by James D. Ford Esq., GAICD CIPP/US CC | Principal Solicitor, Blue Ocean Law Group℠.

State of California Bar Number: 346590

California does not have a State Bar-issued Statement of Client Rights & Responsibilities.

These matters are regulated by the California Rules of Professional Conduct, the California Business and Professions Code, other relevant legislation as well as your Written Fee Agreement with your Attorney.

For your information, for his U.S. based legal matters James D. Ford Esq. Attorney-at-Law includes the below standard Statement of Client Rights & Responsibilities as an Annexure to his Written Fee Agreements.

Statement of Client’s Rights

You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and nonlawyer personnel in your lawyer’s office.

You are entitled to have your attorney handle your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to discharge your attorney and terminate the attorney-client relationship at any time. (Court approval may be required in some matters, and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge.)

You are entitled to your lawyer’s independent professional judgment and undivided loyalty uncompromised by conflicts of interest.

You are entitled not to be charged unconscionably high fees and expenses and to have your lawyer explain before or within a reasonable time after commencement of the representation how the fees and expenses will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any arrangement for fees and expenses that you find unsatisfactory. In the event of a fee dispute, you may have the right to seek arbitration; your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request.

You are entitled to have your questions and concerns addressed promptly and to receive a prompt reply to your letters, telephone calls, emails, faxes, and other communications.

You are entitled to be kept reasonably informed as to the status of your matter and are entitled to have your attorney promptly comply with your reasonable requests for information, including your requests for copies of papers relevant to the matter. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter and make informed decisions regarding the representation.

You are entitled to have your legitimate objectives respected by your attorney. In particular, the decision of whether to settle your matter is yours and not your lawyer’s. (Court approval of a settlement is required in some matters.)

You have the right to privacy in your communications with your lawyer and to have your confidential information preserved by your lawyer to the extent required by law.

You are entitled to have your attorney conduct himself or herself ethically in accordance with the California Rules of Professional Conduct.

You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability.

Statement of Client’s Responsibilities

The client is expected to treat the lawyer and the lawyer’s staff with courtesy and consideration.

The client’s relationship with the lawyer must be one of complete candor and the lawyer must be apprised of all facts or circumstances of the matter being handled by the lawyer even if the client believes that those facts may be detrimental to the client’s cause or unflattering to the client.

The client must honor the fee arrangement as agreed to with the lawyer, in accordance with law.

All bills for services rendered which are tendered to the client pursuant to the agreed upon fee arrangement should be paid promptly.

The client may withdraw from the attorney-client relationship, subject to financial commitments under the agreed to fee arrangement, and, in certain circumstances, subject to court approval.

Although the client should expect that his or her correspondence, telephone calls and other communications will be answered within a reasonable time frame, the client should recognize that the lawyer has other clients equally demanding of the lawyer’s time and attention.

The client should maintain contact with the lawyer, promptly notify the lawyer of any change in telephone number or address and respond promptly to a request by the lawyer for information and cooperation.

The client must realize that the lawyer need respect only legitimate objectives of the client and that the lawyer will not advocate or propose positions which are unprofessional or contrary to law or the California Rules of Professional Conduct.

The lawyer may be unable to accept a case if the lawyer has previous professional commitments which will result in inadequate time being available for the proper representation of a new client.

A lawyer is under no obligation to accept a client if the lawyer determines that the cause of the client is without merit, a conflict of interest would exist or that a suitable working relationship with the client is not likely.

Download a Copy of the California Rules of Professional Conduct

To download a copy or the California Rules of Professional Conduct, please click here.

Contact us for Clarifications

For questions or additional information about James D. Ford Esq.'s legal services in California (delivered via his Australian-based Law Firm, Blue Ocean Law Group℠), please contact us by clicking here or click here to book a consultation.

‍Credits:

This FAQ was created by James D. Ford Esq., GAICD CIPP/US CC | Principal Solicitor, Blue Ocean Law Group℠.

State of California Bar Number: 346590

In the United States there are two types of Legal Professional Privilege:

⚖️ The Attorney-Client Privilege; and

⚖️ The Attorney Work Product Doctrine.

What is the Attorney-Client Privilege?

Attorney-Client Privilege refers to a legal privilege that works to keep confidential communications between an attorney and their client private.

Communications made to and by a lawyer in the presence of a third party may not be entitled to this privilege on grounds that they are not confidential.

The privilege can be affirmatively raised in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testify under oath. A client, but not a lawyer, who wishes not to raise attorney-client privilege as a defense is free to do so, thereby waiving the privilege.

This privilege exists only when there is an attorney-client relationship.  

Under the Model Rules of Professional Conduct, the attorney-client privilege exists for a potential client. Under Togstad v. Vesely, 291 N.W.2d 686 (1980), a non-client can claim to be a prospective client if:

⚖️ The non-client seeks legal advice,

⚖️ Then the non-client reasonably relies on that advice as legal advice, and 3) the attorney does not attempt to dissuade the non-client from relying on the advice.

⚖️ The non-client is considered a prospective client under Togstad, then the attorney-client privilege will extend to that prospective client.

What is the Attorney Work Product Doctrine?

Work Product includes all material prepared in anticipation of litigation.

Generally, Work Product is privileged, meaning it is exempt from discovery.

However, there are exceptions.

Work Product is divided into two categories: ordinary and opinion.

Ordinary Work Product is the result of gathering basic facts or conducting interviews with witnesses, and is discoverable if there is a showing of substantial need, like a witness that becomes unavailable.

Opinion Work Product is the record of an attorney’s mental impressions, ideas or strategies, and is almost never subject to discovery.  

The presumption of non-disclosure is a rebuttable one.

Sources:

Cornell Law School LII Legal Information Institute ➲ Definition of Attorney-Client Privilege

‍Cornell Law School LII Legal Information Institute ➲ Definition of Work Product

If you have any questions, please contact our legal team for assistance.

Credits:

This FAQ was created by James D. Ford Esq., GAICD CIPP/US | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is Client Legal Privilege?

Legal Professional Privilege is both a common law and statutory legal right held by in Australia all legal professionals' Clients modernly called Client Legal Privilege (CLP).

Client Legal Privilege (CLP) "... exists to protect the administration of justice by encouraging individuals and other entities/organisations to obtain confidential advice about their legal circumstances without the risk of prejudice and damage by subsequent compulsory disclosure on the demand of any administrative officer with some general statutory authority to obtain information or seize documents."

Client Legal Privilege protects legal advice given by a lawyer to his or her client (advice privilege) and communications pertaining to actual or contemplated litigation or court proceedings (litigation privilege).

Advice Privilege

Section 118 of the Uniform Evidence Acts in Australia provides that evidence is not to be adduced if, on objection by the Client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the Client and a lawyer; or

(b) a confidential communication made between two or more lawyers acting for the Client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the Client or the lawyer;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the Client.

Litigation Privilege

Section 119 of the Uniform Evidence Acts in Australia establishes a Litigation Privilege, protecting confidential communications between:

⚖️ A Client and another person, or

⚖️ A lawyer acting for a Client and another person; or

⚖️ The contents of a confidential document that was prepared ...

For the dominant purpose of a Client being provided with legal services related to an Australian or overseas legal proceeding or anticipated legal proceeding in which the Client is or may be a party.

The ALRC considered that confidential communications between a lawyer or Client and third parties are a part of adversarial litigation and therefore should also be protected by Client legal privilege.^[44]

The Privilege belongs to the Client

It is called Client Legal Privilege because the privilege belongs to the Client, not the lawyer.

A lawyer may only disclose privileged communications if clearly instructed to do so by their Client.

If you have any questions, please contact our legal team for assistance.

Sources:

‍Law Council of Australia

Uniform Evidence Law ALRC Report 102/14

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Do you already have (or have access to) Rental Car Insurance?

You may already have (or have access to) existing Rental Car Insurance coverage that meets your needs by providing sufficient coverage for your risk profile.

Start by considering the following possible alternatives:

✅ In the United States, private car insurance coverage might extend to cover rentals as well, but if a claim is made for rental car damages, your annual car insurance premiums will likely increase, you will most likely need to pay a deductible/excess, and you need to be careful about what is and what is and is not covered.

For example, your private car insurance coverage will most likely not extend to cover a rental car that is rented for business purposes.

There are large variations in what your private car insurance covers when you rent a car.  

✅ Travel insurance might indirectly cover rental car damage (or maybe not as certain rental vehicles are generally excluded from coverage such as motorcycles, vans & campers) and if you are travelling overseas it is recommended especially for medical expenses in the event of a collision or otherwise.

Travel Insurance is still recommended for Australians visiting a country that has a Reciprocal Health Care Agreement (RHCA) to provide financial assistance with "medically necessary" care (which incl. emergency care and care for an illness or injury that can't wait until you return home) for Australians visiting the following 11 countries: Belgium, Finland, Italy, Malta, the Netherlands, New Zealand, Norway, the Republic of Ireland, Slovenia, Sweden & the United Kingdom.

✅ Insurance coverage might automatically apply if you decide to pay the rental fees using your credit or debit card, but care needs to be taken to understand what countries are covered if you are OK with secondary coverage (as this is the norm for this type of insurance), and what is and is not covered;

✅ Expedia or Priceline and many other online booking platforms may include an option to buy collision coverage for circa $11 a day (the coverage is generally provided by a third-party insurance company such as Allianz or AXA); or

✅ Third-party collision coverage such as Bonzah which costs around $10-$20 a day is yet another option to consider, though this is something that most likely requires planning before you pick up your rental car.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

ALL Damages in the United States are more than just the cost of repairs to the rental car and generally include "Associated Losses" such as the following:

⚖️ "Loss of earnings" means the lost opportunity to rent the car at the full daily rental rate whilst it is out of service being fixed, even if the Rental Car Provider has lots of other cars available for rent.

⚖️ Towing charges if you are unable to drive the car back to the rental returns area, plus a surcharge if the damaged rental car needs to be towed to somewhere other than where it was due to be returned, that is, a different rental car returns location.

⚖️ "Diminished value" or the potential loss of the car's resale value (because of your damage) when the Rental Car Provider disposes of it, usually within 2 years.

⚖️ Claim Administrative expenses associated with the claims process.

Regardless of what other insurance coverage you already have or can access as an alternative, in the United States, taking up a ridiculously overpriced Rental Car Insurance is the only way to achieve "no up-front payments" whilst at the same time avoiding the risk of not being fully reimbursed.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What level of General Liability Protection do you have (if any)?

Regardless of whether or not you decide to take up Rental Car Insurance, it is important to consider General Liability Protection, specifically, what amount you are covered for based on all relevant insurance policies.

General Liability Protection insurance typically covers damages to other people's property (e.g. their cars) as well as medical costs for other people’s injuries in an accident you're legally responsible for.

In the U.S., every state requires a minimum amount of liability insurance on car insurance policies, so you may already have liability coverage through your personal auto insurance.

Making a fully-informed decision regarding your General Liability Protection insurance coverage:

⚖️ You need to decide whether or not separate General Liability Protection insurance coverage is required to obtain or increase your general liability coverage (if any, especially if it is only the statutory minimum) or whether using a Supplementary Liability Insurance policy is needed to match your risk profile.

Tip: If you run a business or charity or are a high net-worth individual, an "Umbrella" insurance policy providing General Liability Protection for at least $1 Million is always recommended.

Note: As General Liability Protection can be found in a wide range of insurance policies, you should always conduct your independent review of ALL of your existing insurance policies, especially the insurance coverage already provided by your "umbrella" (if any) or general business or charity insurance, as well as your household and/or homeowner/tenant insurance policies.

Given the extensive number of potential sources of General Liability Protection, we have decided to direct you to discuss your General Liability Protection insurance coverage needs with your insurance broker.

At a later date, if there is sufficient demand, we may decide to build a dedicated General Liability Protection ➲ Legal Wizard.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Canstar Research reviewed Australian Credit Cards listed on our database, and found that there are a number of companies that do offer complimentary rental car excess cover with their cards.

Bear in mind that some of these providers offer complimentary rental vehicle excess cover for overseas travel only.

It’s also important to remember that there are eligibility criteria that have to be met for this cover to kick in, which could include things such as charging all or part of travel costs to the card.

Before committing to any particular credit card, check upfront with your provider and read the Target Market Determination (TMD), Key Facts Sheet and other important policy documents so you understand details about any relevant car excess cover.

• American Express
• ANZ
• Bank of Melbourne (Overseas Only)
• BankSA (Overseas Only)
• Bendigo Bank
• Beyond Bank
• BOQ
• Commonwealth Bank (Overseas Only)
• Great Southern Bank (Overseas Only)
• Heritage Bank
• HSBC
• ING (Overseas Only)
• NAB
• Qudos Bank (Overseas Only)
• St.George Bank (Overseas Only)
• Suncorp Bank
• Westpac

Source: www.canstar.com.au – 23/11/2023.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Do you need an International Driving Permit (IDP)?

Some car Rental Car Companies might ask for an International Driving Permit (IDP) as a part of their standard policy, even if having it is not necessary for that country.

Other countries, such as Botswana or Saudi Arabia, require an IDP when hiring a rental car.

Always double-check with your car rental company’s terms and conditions before you rent a car to avoid unpleasant surprises during your trip.

You can only obtain an International Driving Permit in the country where your driver’s license was issued.

That’s why it’s crucial to get the permits before you leave for your trip, otherwise it may become impossible to rent a car (or drive at all) overseas.

Please refer to our FAQ for more information to help you make this determination.

At a later date, if there is sufficient demand, we may decide to build a dedicated International Driving Permit ➲ Legal Wizard.

An International Driving Permit (IDP), often referred to as an international driving license, is a translation of a domestic driving license that allows the holder to drive a private motor vehicle in any country or jurisdiction that recognises the document.

International Driving Permits are governed by three international conventions: the 1926 Paris International Convention relative to Motor Traffic, the 1949 Geneva Convention on Road Traffic, and the 1968 Vienna Convention on Road Traffic. When a state is contracted to more than one convention, the newest one terminates and replaces previous ones.

IDPs are issued by a national government directly, or through a network of AIT/FIA organizations or by any association duly empowered thereto by such other Contracting Party.^[1]

For the latter case those issuing organizations are mostly automobile associations,^[2] such as American Automobile Association^[3] in the United States, Norwegian Automobile Federation^[4] in Norway and Riksförbundet M Sverige^[5] in Sweden. As there are many unofficial sellers on the internet, the AIT/FIA has created an approved directory to all IDP issuing organizations in the world.^[6]

To be valid, the IDP must be accompanied by a valid Driver's license issued in the applicant's country of residence.

An IDP is not required if the driver's domestic licence meets the requirements of the 1949 or 1968 convention; the domestic licence can be used directly in a foreign jurisdiction that is a party to that convention.^[7]

In addition, other arrangements eliminates the need of an IDP in some countries, such as the European driving licence valid within the European Economic Area (EEA) as well as member states of the Association of Southeast Asian Nations (ASEAN) with each other.^[8]

A major tourist destination that doesn’t recognize the International Driving Permit is the People’s Republic of China. In order to drive in China, foreign tourists need to obtain a Chinese driving license. Contact your local Chinese embassy for details.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

The Truth about Rent Car Insurance You Need to Know!

To better understand consumer experiences with Rental Car Insurance, we have searched for expert US travel industry advice to provide some context.

This blog article by industry expert Ed Perkins titled "The Truth about Rental Car Insurance You Need to Know" is dated 20 September 2023 and appears "on point".

"Consumer advocate Ed Perkins, the founding editor of the Consumer Reports Travel Letter, has been writing about travel for more than three decades."

The introduction to the blog article is extracted below:

"No matter how often I cover the problems that come with collision damage under car rental insurance, consumers continue to share their frustrations.

A reader recently emailed me:

'I'm interested in finding a complete bumper-to-bumper, 'drop off the keys at the counter' car rental coverage when I travel. I recently thought I had complete coverage though a credit card, but when my car suffered a small dent, the car rental company flat-out refused to document that it actually lost income from having the car rental in the shop (which took three weeks to repair a small dent). I was left with responsibility.'

This experience is uncommon, but not unique.

Car rental companies desperately want you to buy their collision damage waiver, or CDW (sometimes also known as loss damage waiver, or LDW), and will go to great lengths to make you pay for even the smallest damages if you don't.

Here's what you need to know before you shell out for car rental insurance on your next vacation ..."

The detailed "What you need to know" part of the article includes the following headings:

The 1-way to drop your keys and forget it!

CDW Insurance is ridiculously overpriced

You'll pay up-front for all damage

Damage is more than fixing a dent

You need General Liability Protection

Alternatives to Rental Company Collision Damage Waivers

1️⃣ Pay with your Existing Car Insurance;

2️⃣ Use Credit Card Benefits;

3️⃣ Third-Party Car Rental Insurance;

The Uncertainty Principle

key takeaway

"The takeaway from all this: No alternative source of collision damage coverage-your auto insurance, your credit card, or a third party-completely isolates you from risk. Lots of travelers successfully rely on lower-cost alternatives to CDW without encountering any problems, sure.

Occasionally, however, your own insurance, credit card, or third-party policy may not cover an unusual charge a rental company might impose.

If you're unwilling to accept any risk at all, you might want to buy that overpriced CDW. For most travelers and circumstances, credit card or third-party coverage is sufficient, and primary coverage is a lot better than secondary."

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

why is a reasonable use policy required for titan lawyer [ai]?

The ability to have us submit your requests to Titan Lawyer [AI] on your behalf is currently free for Blue Ocean Law Group's Clients + Subscribers.

Each time a request is sent to Titan Lawyer [AI] charges are incurred.

The charges are reasonable but they can add up quickly when an unreasonable number of requests are submitted.

⭐️ Therefore, in order to facilitate continued free access to Titan Lawyer [AI] for all our Clients + Subscribers we need to make such use subject to the below Titan Lawyer [AI] Reasonable Use Policy.

⚖️ If you exceed your Reasonable Usage Rights you may be requested to:

1️⃣ Immediately upgrade your Subscription Level; or

2️⃣ Enter into a Contract where you agree to pay for your increased level of usage in bulk.

titan lawyer [ai] reasonable use policy

The following levels of usage constitute Reasonable Use for the purposes of this Titan Lawyer [AI] Reasonable Use Policy:

👨‍💻 Buccaneer/Individual Subscriptions ➲ 1-3 Submissions per Day;

⛵️ Yachtsman/Business Subscriptions ➲ 1-10 Submissions per Day; and

Clients & ⩴ Captain/Chairman Subscriptions ➲ Pre-Agreed Usage Level.

clear cases of excessive use

If you use Titan Lawyer [AI] excessively in a manner that overloads our servers and your usage is a clear case of breach of the above Reasonable Use Policy we may suspend or cancel your ability to have us Submit your Requests to Titan Lawyer [AI] on your behalf at any time where reasonable.

How do I make an Affidavit in NSW?

You (the deponent) make an Affidavit by swearing or affirming that the Affidavit’s contents are true before a witness who must be one of the following:

• A Justice of the peace (“JP”)
• A Solicitor
• A Barrister
• A Commissioner for affidavits
• A Notary public.

Mandatory Requirements

You MUST:

• Sign in the presence of the witness
• Sgn the foot of each page (excluding annexures)
• Initial any alterations, additions or erasures.

You or the witness MUST:

• Write or type the date in the title at the top of the front page of the Affidavit and in the introductory paragraph of the Affidavit
• Delete the word ‘Affirmed’, if you have taken an oath OR delete the word ‘Sworn’, if you have made an affirmation.

Following this, the witness MUST sign:

• underneath the words ‘Sworn (or Affirmed) at [place]’
• at the foot of each page of the Affidavit (although there is no need for the witness or deponent to sign the first page if it is only the title page of the Affidavit, containing none of the substance)
• the certificate endorsed on any annexure
• the certificate attached to any exhibit.

The witness must initial any alterations, additions or erasures (see UCPR 35.5).

The Affidavit MUST include:

• the witnesses’ name and address
• the JP’s registration number, if relevant.

If the witness is a JP, the JP may provide his or her registration number as a JP in place of the JP’s address.

JPs must write their registration number on any document they sign or witness as a JP in accordance with the “Guidelines for Justices of the Peace” developed in accordance with requirements under the Justices of the Peace Act 2002 (NSW) and the Justices of the Peace Regulation 2014 (NSW) and outlined in the Justices of the Peace Handbook.

If the witness is a notary public, the notary public must apply his or her seal.

Where an Affidavit or witness statement is being taken and the deponent or the witness requires an interpreter, the interpreter must give a certification in the form contained within the forms.

Annexures to an Affidavit

See UCPR 35.6 for more information.

If you are annexing documents to an Affidavit, you must include a certificate on the annexure that contains the following information.

The certificate must not be on a separate page from the annexure.

The pages of the Affidavit and the annexures must be consecutively numbered in a single series of numbers.

Your Subscription Portal

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‍

For many of our new clients dealing with legal matters is a totally new experience.

Even if you have previously dealt with legal matters, you may not have been advised regarding certain options (or the options may not have existed at the time).

This FAQ has been created to direct our new clients to start by reading our blog article Helpful Hints ➲ Maximise Value whilst Protecting your Legal Rights + Position.

If you are in doubt about anything mentioned in the article, it is always the right decision to contact our legal team with your queries.

Once you have acquainted yourself with our helpful hints, we trust that you will be excited to learn + discover more about how we can work together to meet your current + future legal + business needs as we all navigate these uncharted post-COVID pandemic waters.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Client Cyber Alert Letter

We strongly encourage all our new clients to access and step through our free online automated [Self-Service] Client Cyber Alert Letter.

This free educational process can be completed in your own time, from anywhere, even from your mobile phone (if required).

If you are interrupted for any reason, you can save your work and will be sent a link to resume the process when convenient.

For the Client Cyber Alert Letter to be effective we urge you to please complete the process before you or anyone else (on your instructions/behalf) send or receive any funds to/from our law firm.

As this is an interactive process there is an increased liklihood that you will learn more regarding what steps you can take to protect yourself from Cyber Fraud.

Completing our Client Cyber Alert Letter process will also introduce you to a free example of how our online automated Self-Service legal documents are generated.

If you have any questions, please contact our legal team for assistance.

Together we can help prevent Cyber Fraud

As part of the process we recommend you download and read the "Together we can help prevent Cyber Fraud" brochure created by the NSW Law Society and LawCover.

Blue Ocean Law Group are constantly monitoring our cyber security policies to ensure that both we and our clients remain cyber safe.

We need your help to ensure that your information and funds remain secure.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

A: Yes

Blue Ocean Law Group℠ had partnered with QuickFee to provide our Clients with Professional Fee Funding, that is, using QuickFee you were able to apply to pay your legal professional fees + disbursements over 4 months at 0% interest.

Whilst this was an innovative idea to lower the upfront financial burden on our Clients, unfortunately QuickFee has decided to discontinue this product.

In the interests of delivering value to our Clients, Blue Ocean Law Group have decided to continue this offering.

Contact us directly to apply.

Note: ⚖️ Your legal matter may also qualify for access to Disbursement Fee Funding / Family Law Funding (subject to approval by QuickFee).

Please contact us if you would like to arrange a longer term payment arrangement consisting of up to 12 monthly instalments using QuickFee's Pay Now service.

Australian Consumer Guarantees

Australian Consumer Guarantee means?

The Australian Consumer Guarantees are the promises +/or assurances that automatically apply (imposed as protection for consumers by Australian Consumer Law) to the sale of products and services to consumers in Australia.

Australian Consumer Guarantees apply regardless of anything the seller states to the contrary, including their standard terms + conditions, or warnings on their website or the place of purchase of the product or service.

Who is a Consumer?

From 1 July, 2021:

👨‍💻 A consumer includes any purchaser (including a business) where the purchase amount is less than a monetary threshold of $100,000 (previously the monetary threshold was $40,000); or

🏡 Consumers of goods or services (for any price) if the goods or services are of a kind ordinarily purchased for personal, domestic or household use; or

🚚 A vehicle or trailer purchased primarily for use in the transport of goods on public roads.

Scope of Protection

➲ Bundled products and services;

➲ Gifts with proof of purchase;

➲ Sale items;

➲ Online products and services bought from Australian businesses; and

➲ Second-hand products from businesses, taking into account age and condition.

Exceptions do apply.

Consumer rights

If a business fails to deliver any of these guarantees, consumers are granted the following legal rights:

⚖️ Repair, replacement or refund

⚖️ Cancelling a service

⚖️ Compensation for damages & loss.

Consumer Product Guarantees

Since 1 January 2011, the following consumer guarantees on products and services apply.

Products must be of acceptable quality, that is:

🔎 Safe, lasting, with no faults;

🔎 Look acceptable; and

🔎 Do all the things someone would normally expect them to do.

Acceptable quality takes into account what would normally be expected for the type of product and cost.

Products must:

✅ Match descriptions made by the salesperson, on packaging and labels, and in promotions or advertising;

✅ Match any demonstration model or sample you asked for;

✅ Be fit for the purpose the business told you it would be fit for and for any purpose that you made known to the business before purchasing;

✅ Come with full title and ownership;

✅ Not carry any hidden debts or extra charges;

✅ Come with undisturbed possession, so no one has a right to take the goods away or prevent you from using them;

✅ Meet any extra promises made about performance, condition and quality, such as life time guarantees and money back offers; and

✅ Have spare parts and repair facilities available for a reasonable time after purchase unless you were told otherwise.

Consumer Service Guarantees

Services must be:

✅ Provided with acceptable care and skill or technical knowledge and taking all necessary steps to avoid loss and damage;

✅ Fit for the purpose or give the results that you and the business had agreed to; and

✅ Delivered within a reasonable time when there is no agreed end date.

Source: ACCC website.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

⩴ Captain [Cicero] will see you now …

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Further Reading: ⩴ Captain [Cicero] Chatbot ➲ Is my Will Simple or Complex?

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What assets can you keep in Bankruptcy?

Important Note: The amounts mentioned in this FAQ are valid as at 27 October, 2021.

Amounts provided in this FAQ should only be taken as a general guide.

Many Bankruptcy-related monetary thresholds are indexed/subject to change over time.

Work-Related Tools/Equipment

Assets required to perform your trade or profession can be kept up to their current market value (if they were sold today) of $3,800.

Transport

A vehicle or vehicles (including motorbikes) you own and mainly use for transport up to the value of $8,150 are also allowed to remain with you.

If you haven’t paid off the vehicle, the amount that counts towards the limit is its value minus what you still owe.

Cash

Your Trustee in Bankruptcy can take any cash or money you have in a bank account at the date of bankruptcy, but will leave you with enough for modest living expenses.

Personal Property

Other items of property you may own that you can keep in bankruptcy include:

✅ Household goods – appliances, furniture, clothing

✅ Superannuation funds (unless you’ve made contributions prior to bankruptcy to defeat creditors)

✅ Assets you hold on trust for someone else

✅ Awards with sentimental value up to certain limits and creditor approval (e.g. sports trophies)

✅ Personal injury claims and compensation

✅ Life insurance policies

Your Home

If you are able to make the necessary arrangements, you may be able to co-ordinate a co-owner, family member or friend to purchase your interest in your home from the Trustee in Bankruptcy so that you can continue to live in your house.

Your Income (if any) during Bankruptcy

The legislation currently allows you to keep every after-tax dollar of your income up to $60,515 (if you have no dependants). This threshold increases if you have dependants.

For after-tax income above your relevant threshold, you will need to pay the Trustee in Bankruptcy 50c per after-tax dollar you earn.

Which debts are not covered by bankruptcy?

It is important to be aware that the following debts are not automatically extinguished by your Bankruptcy:

❌ Fines ordered by a Court (including traffic + parking offences);

❌ Child Support debts;

❌ HELP + HECS debts (Student Loans);

❌ Debts incurred after your Bankruptcy commences; and

❌ Debts incurred by fraud.

Your Statement of Affairs (SOA)

All Bankrupt Persons must complete a Statement of Affairs (SOA) + submit it to their Trustee in Bankruptcy.

Failure to do so in a timely manner can extend the length of time you remain Bankrupt.

When you do provide your SOA, you need to do you best to ensure it is complete as It is a serious offence to fail to provide full disclosure of all of your assets + liabilities.

Undisclosed assets or debts are highly likely to be uncovered during the investigations carried out by your Trustee in Bankruptcy.

If you omit something by accident, it is extremely important to let your Trustee in Bankruptcy know as soon as possible.

Further reading: The Consequences of Bankruptcy

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Dealing with Uncertainty

Our advice, if you are apprehensive about the current state of uncertainty in the legal profession job market is to educate yourself about the future.

“The future is here now, it is just very unevenly distributed.”  

The more we rely on this quote as a mantra, the more we relinquish our own agency.

It puts us all into the position of living in a future that belongs to someone else and never our own.

“The best way to predict the future is to create it!”

What does that mean?

The Future… Kind of scary sounding. Full of unknowns. Full of twists and turns. How can you possibly predict it?

The above quote is saying that the best way to know what is coming is to step up to be an active participant in creating the future.

⚖️ Tomorrow's Lawyers

To help you understand what the future of the work in the legal profession might look like we recommend you read Tomorrow’s Lawyers 2nd edition.

➲ The book lists out potential new career paths for lawyers that have not existed previously.

"It invites the next generation of lawyers to harness the power of technology in improving and even overhauling the way in which legal and court service is currently provided."

If you would like to seek an independent opinion please read this review of the book.

🔑 Key Takeaways

It is important to understand that lawyers can increasingly operate + practice from anywhere in the world, and across multiple legal jurisdictions.  

Example: Australian lawyer working for Australian law firm from Canada

When it comes to “behind the scenes” legal support and tech development ➲ there are no geographical limitations perhaps other than language + civil law jurisdictions (where you have been trained in a common law jurisdiction).

🥊 Alternative Dispute Resolution

Learn about the global opportunities emerging in Alternative Dispute Resolution.

Example: This organisation we have not dealt with.. explain the growing opportunities in this space, presumably to help sell their ADR training.  

It is still useful to understand the opportunity.

🚀 Space Law

Think about Space Law ➲ any lawyer from any jurisdiction could theoretically practice in this interesting + expanding area of law.  

The same applies for the increased relevance of International Law in increasingly complex global commercial transactions.

🔗 Smart Contracts / Blockchain-related Law

Other areas of growth to look into Smart Contracts, Blockchain related law, etc.

A Smart Contract is a computer program or a transaction protocol which is intended to automatically execute, control or document legally relevant events and actions according to the terms of a contract or an agreement.

🔒 Privacy Law / Digital Life

Some commentators have stated that Privacy can no longer be expected as surveillance is so widespread Privacy no longer exists.

Our view is that the right to + regulation of Privacy has started and will continue to become a larger part of our increasingly Digital Lives.

It is another major growth area with local companies needing to deal with global Privacy regimes such as the GDPR for their dealings with EU Citizens.

💡 Augmented Reality + AI

Augmented reality + AI are other areas to explore.

Further Reading: FAQ: What lies ahead for the future of the legal profession?

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is Key Person Insurance or Buy/Sell Insurance?

Key Person Insurance or Buy/Sell Insurance (or in the case of a Partnership Agreement, Partnership Buyout Insurance) provides the funds needed for the remaining owners of a business/trust to:

✅ Takeover or purchase the exiting owners share; and/or

✅ Have access to the required funds to replace the Key Person or recover from the loss of the Key Person from the business …

In the event of their death, total and permanent disability, or severe illness/trauma such as heart attack, stroke, cancer and/or paraplegia.

This type of insurance cover helps the business continue running with minimal disruption.

For the departing person or their estate, this insurance assists them to receive the agreed (normally market value) of their shareholding in return for transferring their business share to the remaining owners of the business/trust, or terminating their Employment / Independent Contractor Agreement.

Best Practice in a Shareholders' or Unitholders' Agreement

The Best practice within a Shareholders' or Unitholders' Agreement is to include terms that ensure life, permanent disability + trauma insurance is taken out in relation to all of the Securityholders.

The company or unit trust pays the annual insurance premiums.

Then, if a Securityholder is required to offer its securities for sale to the remaining Securityholders as a result of death, permanent disability + trauma sufficient to be covered by the insurance policy, the proceeds of the insurance policy are used to assist the remaining Securityholders in buying those securities.

The directors or trustee/s determine the amounts for the insurance policy from time to time, with the consent of Key (that is the majority or controlling) Securityholders.

Death or Incapacity of a Securityholder

In our Shareholders' or Unitholders' Agreement, by default, the death or incapacity of a Securityholder will not trigger a right for the other parties to buy out that Securityholder.

If you choose to add our Best Practice Buy/Sell Insurance provisions to the  Shareholders' or Unitholders' Agreement, then death/incapacity will be added as a trigger event requiring the affected party to offer its securities for sale to the remaining Securityholders.

Professional Tax/Accounting/Legal Advice is always Recommended

The potential for future ownership changes, and triggered tax implications {including income tax, capital gains tax, and fringe benefits tax) should be considered before final arrangements are made.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Why it is time for a Smarter Digital Legacy Plan?

✅ A simple and highly secure way to manage, assign + leave your Digital Assets together with your instructions;

✅ Items such as passwords, cryptocurrency, NFT's (Non-Fungible Tokens), messages, important legal documents, your "Museum of Me" + more;

✅ Leave detailed instructions for the long-term care of your Pet/s;

✅ At every stage, we have designed the process to ensure that no data can be accidentally exposed;

✅ Intelligent permissions management: Our legal team will only see data we collaborate on together, or data you want us to see;

✅ Select who amongst your nominated Executor/s, Digital Steward + Confidants can see your Digital Assets now, and/or after you pass away;

✅ Friendly interface; and

✅ Collaborate with us on sensitive matters with ease.

How Does it Work?

No More Envelopes.
No More Spreadsheets.

Until now people have only had a few choices to safeguard + update their Digital Assets.

They could write down all their secrets and passwords on a spreadsheet or on a piece of paper, put a copy in an envelope and simply stick them in the sock draw – or pay for a safe custody lockbox at a bank, and make a trip there every few years to ensure the details are kept as current as possible.

The problem is that others could stumble upon the details, the hard drive could corrupt, the house could burn down, the key to the safe custody lockbox could be lost, and/or due to the difficulty in updating the information it is now out-of-date!

Our Digital Safe Custody Vault is safer, cheaper, more secure + easier to update anytime 24/7.

🔒 All data is triple-encrypted, meaning only you can see it - we can't see your data unless you grant permission!

✅ An easy-to-use web browser interface or downloadable local app to your desktop or laptop (Windows or Mac) means updating passwords or files is simple.

🧩 Perfect backup and Estate Planning solution for all your Digital Assets (including Cryptocurrency).

Social Engineering + Independent Verification + our Legal Team ✅ = Secure Release

Before your Digital Assets are released according to your instructions, unanimous consensus is required from all persons you nominate as your trusted Confidants + Blue Ocean Law Group℠ that you have passed away, as well as an independent analysis of your last login time, devices used and other activity data.

✅ Easy + quick administration with zero chance of important information, such as the location of your current original Will (as well as locating digital copies for added fraud prevention) being unable to be determined/found by your Executor / Digital Steward.

Create + Update your Smarter Digital Legacy Plan at your convenience

✅ We layout the tasks we recommend you complete to create / update your Smarter Digital Legacy Plan.

✅ You complete the tasks at your own pace whenever is convenient for you 24/7;

✅ You will be prompted to make sure everything gets done in a timely manner by automated reminders.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

The Digital Vault User Guide

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‍

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Our Digital Asset Safe Custody Vault is Built like Fort Knox!

In a word it is "Bullet-Proof", or in another word "Unhackable"!

Our platform provider The Prepared Company uses end-to-end military-grade encryption, enforces two-factor authentication, and uses social engineering + legal proof prior to triggering release of your Digital Assets.

Our Digital Asset Safe Custody Vault was built by experts who are using it themselves to protect + safeguard their own Digital Assets.

3-levels of encryption to store + read your data

1️⃣ Encryption of all your Digital Assets using your own unique key

Each client has their own unique key created when they sign up – this encryption key is used to encrypt their Digital Assets.

Only your unique encryption key can read or write data for you.

2️⃣ Encryption of your Digital Assets again with an application level key

Once the data enters your account, it is then encrypted again with our Blue Ocean Law Group℠ encryption key.

This means one would now need both your unique user key and our application key to read your data.

3️⃣ Encryption of the stored Digital Assets again with a database key

Once your encrypted data is stored, we encrypt it a third time using a database key.

This effectively puts the key to the Digital Safe Custody Vault – inside the vault.

Mandatory two-factor authentication

Helping You Protect Yourself

At a certain point, cyber security boils down to individuals also embracing safe practices.

While a lot of businesses make these optional – we do not.

✅ We enforce Two-Factor Authentication (which means merely having your username and password is not enough to gain access to your account); and

✅ Routinely check your data against historic 3rd party data breaches and hacks.

✅ We don’t force you to change your password every 6 months, but we do ask you to verify each time a new device is used to log in to your account.

An additional layer of security ➲ Hybrid Storage™ / Hardware Wallet

If your Digital Assets are extremely valuable or sensitive, it is possible to add an additional layer of security by adopting the practice of Hybrid Storage™.

Hybrid Storage™

Hybrid Storage™ involves storing part of a Cryptocurrency / NFT (Non-Fungible Token) Encryption Key or Password digitally, and other parts physically (or vice-versa).

Best practice would suggest that the Encryption Key or Password be divided into at least 4 parts for maximum protection.

The advantage gained by using Hybrid Storage™ is that if either the Physical or Digital Asset Safe Custody Vault are breached by criminals ➲ there is not enough information to take control of / or deal with your Digital Asset.

Additionally, when the concept of Hybrid Storage™ is adopted, it is possible for multiple physical backup copies of the partial Encryption Key or Password to be physically stored (even outside of the Physical Safe Custody Vault) without substantially increasing risk.

Each partial Encryption Key or Password by itself is no good without the other parts of the Encryption Key or Password which would be safely stored in other Physical Safe Custody Vault locations as well as in the Digital Asset Safe Custody Vault.

Hardware Wallet

A less effective, but also much more convenient + simpler solution would be to use a Hardware Wallet and store the location of the Hardware Wallet and its access key within the Digital Asset Safe Custody Vault.

For further information please read our FAQ: How is a Hardware Wallet used to Store Cryptocurrency?

The most appropriate additional security solution will depend on your need for convenience / level of risk tolerance.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Value Innovation: The Cornerstone of Blue Ocean Strategy

Defy the Dogma: The Cost-Value Trade-Off

It is conventionally believed that companies can either:

1️⃣ Create greater value to customers at a higher cost; or

2️⃣ Create reasonable value at a lower cost.

Using traditional thinking, strategy is seen as making a choice between differentiation and low cost.

For example: Normally, if a law firm wants to differentiate itself from its competitors based on standard established legal industry competing factors, it would need to decide how much $$$ to spend on owning/leasing office space.

The law firm then has a conventional choice, to locate in an expensive CBD office at a higher cost, or to locate in a less expensive suburban office at a lower cost.

Value Innovation Example: "Co-working" v. Expensive Offices

In contrast, those that seek to create blue oceans pursue both differentiation and low cost simultaneously.

By adopting a co-working arrangement Blue Ocean Law Group uses offices which are shared with other companies + used when required to meet our clients (which only occurs in limited circumstances).

Co-working has effectively allowed us to locate our client-facing activities in an expensive CBD office at a lower cost than even the less expensive suburban office.

This achieves both differentiation and low cost simultaneously, defying the dogma of the traditional cost-value trade-off.

The ERRC Grid

Value Innovation is created in the region where a company's actions favourably affect both its cost structure and its value proposition to clients.

Cost savings are made by eliminating and reducing the factors an industry competes on which do not add value to the client.

Value is lifted by raising and creating elements the industry has never offered before which do add value to the client.

Eliminate / Reduce

In our above example, Blue Ocean Law Group have eliminated the fixed cost of owning/leasing expensive office space in the CBD.

Incurring this significant cost does not add value to the client.

Raise / Create

These cost savings have allowed Blue Ocean Law Group to invest time and resources into delivering value to clients which have not traditionally been offered directly by a law firm.

A few examples include the following:

✅ An easy to use, online 24/7, access from anywhere (including from your phone if required), Self-Service Legal Document generation portal, with support from our legal team as and when required;

✅ The option to add Authentic*/ Genuine Document Security for Fraud + Litigation Protection; and

✅ Physical + Digital Safe Custody Vault options.

Over time, costs are reduced further as scale economies kick in due to the high sales volumes that superior value generates.

Value Innovation: A Leap in Value for both the Company and the Client

Value Innovation is achieved only when the company's utility, price and cost and people are properly aligned.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

An additional layer of security ➲ Hybrid Storage™ / Hardware Wallet

If your Digital Assets are extremely valuable or sensitive, it is possible to add an additional layer of security by adopting the practice of Hybrid Storage™.

Hybrid Storage™

Hybrid Storage™ involves storing part of a Cryptocurrency / NFT (Non-Fungible Token) Encryption Key or Password digitally, and other parts physically (or vice-versa).

Best practice would suggest that the Encryption Key or Password be divided into at least 4 parts for maximum protection.

The advantage gained by using Hybrid Storage™ is that if either the Physical or Digital Safe Custody Vault are breached by criminals ➲ there is not enough information to take control of / or deal with your Digital Asset.

Additionally, when the concept of Hybrid Storage™ is adopted, it is possible for multiple physical backup copies of the partial Encryption Key or Password to be physically stored (even outside of the Physical Safe Custody Vault) without substantially increasing risk.

Each partial Encryption Key or Password by itself is no good without the other parts of the Encryption Key or Password which would be safely stored in other Physical Safe Custody Vault locations as well as in the Digital Safe Custody Vault.

Hardware Wallet

A less effective, but also much more convenient + simpler solution would be to use a Hardware Wallet and store the location of the Hardware Wallet and its access key within the Digital Safe Custody Vault.

For further information please read our FAQ: How is a Hardware Wallet used to physically store Cryptocurrency?

The most appropriate additional security solution will depend on your need for convenience / level of risk tolerance.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

The majority of online Australian Legal Document providers are not law firms!

Whilst it is acknowledged that the legal document templates provided by the majority of [non law-firm] Australian legal document providers will generally have been prepared by lawyers and that the templates they sell are updated from time to time as required by legislative changes.

This does not change the fact that you are not dealing directly with a law firm.

In order to understand what this means from a practical perspective you need to ask the following questions …

What happens?

🧩 If and when you have a legal question?

🧩 If the other party wants to negotiate amendments to the legal document?

🧩 If the legal document does not meet all of the requirements of your specific facts and circumstances?

🧩 If there is a mistake in the legal document?

Lastly, what happens if you are not directly involved in the creation of the legal document?

🧩 What if your accountant, tax agent or financial advisor uses a [non-law firm] online legal document service on your behalf?

To help you answer this question, please read our FAQ: If I create a legal document for my client on your law firm’s website am I giving legal advice or am I a "mere scribe"?

General Answer

A general answer is that online [non-law firm] Australian Legal Document providers are unable to assist clients directly, as they are unable to provide legal advice.

Certain [non-law firm] providers have adopted a business model whereby they earn a substantial ongoing 12 months+ plus referral fee for directing a client to a large directory of law firms who can assist.

This referral fee is charged to the law firm, who may decide to expense it as a marketing cost.

We submit that one way or another, it is ultimately the client who pays for the cost of the referral fee as it increases the cost of doing business for the law firm providing the service to them.

Feedback obtained directly from businesses who have used certain [non-law firm] online services

The valuable feedback we have  obtained is that:

❌ The quality of the online legal documents are basic, non-adaptive templates; such that

❌ The client is more often than not, required to seek assistance from a law firm in order to ensure their legal requirements are met.

As lawyers are required to undertake client interviews and make manual amendments to the legal documents, the final cost ends up much higher than the client could have anticipated, especially when the original online legal document was given away for free or at a nominal cost.

These kinds of business models may not rise to the level of bait & switch, however they may be found to constitute misleading and deceptive conduct.

In our submission, clients appear to be lead to believe that in the majority of cases they will be able to use the standard online documents without the need to engage a law firm to assist, when in fact the opposite may be the case, that is they may need to engage a law firm in the majorot of cases.

What are the benefits of purchasing legal documents directly from Blue Ocean Law Group?

When you purchase online legal documents directly from us, we have every incentive to ensure the quality of the online legal documents provided are as high as possible, and that you have all your questions answered.

List of Benefits:

✅ Our law firm already has a copy of your online responses so we can assist quickly and cost effectively.

✅ 1-stop shop. There is no need to wade through a directory of different law firms each time.

✅ Professional Indemnity Insurance (when you engage us for legal advice);

✅ Higher quality automatically tailored legal documents using Embedded Lawyer-Logic™;

✅ Deal directly with a law firm, no need for middlemen;

✅ No referral fees built into the business model;

✅ Lower overall legal costs;

✅ Legal document delivered directly from our .law web domain so you know we created the legal document;

✅ Legal Professional Privilege; and

✅ Enhanced Confidentiality.

✅ Blue Ocean Law Group (as far as we are aware) are currently the only Australian law firm providing you with the option to create more than 225+ Personal & Business Legal Documents online using our ⚖️ [Self-Service] and/or [Lawyer-Assisted] services.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What are your legal rights if your copyright is infringed online?

If you as the copyright owner or exclusive licensee of the copyright material or either's agent reasonably believe a website is infringing copyright, you may issue a Takedown Notice of Copyright Infringement (Takedown Notice) to the "Designated Representative" of the Internet Service Provider (ISP) who is hosting the website.

A breach of your copyright may include:

❌ A website posting your copyright material without your permission to do so;

❌ A website using your copyright picture, song, film or other work; +/or

❌ A website allowing its users to illegally access or download your copyright material.

Upon receipt of your relevant + valid Takedown Notice the designated representative of the Internet Service Provider (ISP) will:

1️⃣ Immediately remove or block access to the infringing content; and then

2️⃣ Issue an Infringement Notice to the website owner or user who posted the material.

Do you already have a Court Order made by an Australian Court?

The Copyright Regulations 2017 (Comm.) contain 3 prescribed versions of Takedown Notice, one of which is to be used in the situation where the copyright material has already been found to be infringing by an Australian Court.

Embedded Lawyer-Logic™

Our Takedown Notice for Online Copyright Infringement [Australian Hosted Website] uses Embedded Lawyer-Logic™ which automatically adapts to prepare the relevant prescribed version of the Takedown Notice (from the 3 possible alternatives), as well as redirecting you to alternative Takedown procedures if the website is not hosted in Australia.

If you don't already have a Court Order

Step 1️⃣: Ask Nicely?

We recommend you contact the infringing website and make a direct request for the removal of the infringing material.

The website may not be aware they are breaching your copyright and once placed on notice, may promptly comply with your request.  

If the website refuses to take any action, then we recommend you ask the website owner:

Why do you think you have a legal right or permission to use the infringing material?

If the website owner fails to provide an adequate response, you can then consider whether to issue a Takedown Notice.

Step 2️⃣: Where is the alleged copyright infringing website hosted?

In order to determine which Internet Service Provider (ISP) is hosting the alleged copyright infringing website you can use one of the following free search services:

➲ whois.auda.org.au [*.au Domains Only] 🔎 Whois Lookup

➲ whoishostingthis? 🔎 Discover who is hosting any website

Step 3️⃣: Select the relevant Takedown Notice based on where the website is hosted

For websites hosted in:

⚖️ Australia ➲ Use our Takedown Notice for Online Copyright Infringement [Australian Hosted Website] to automatically generate the relevant Takedown Notice (from the 3 possible alternatives) prescribed by Schedule 2 of the Copyright Regulations 2017 (Comm.);

⚖️ USA ➲ Use our Digital Millennium Copyright Act (DCMA) Takedown Notice: DRAFT Only then always obtain professional legal advice to review your DRAFT directly from a USA Attorney before deciding whether to proceed; or

⚖️ Elsewhere ➲ We recommend you obtain professional legal advice directly from a lawyer with knowledge of the relevant foreign jurisdiction.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is a Free Legal Health Check? ✅

Our Legal Health Check is a process that helps you identify + prioritise your individual + business (if relevant) legal needs.

⭐️ Please note that our Bundled Member Subscriptions are currently only available for Australia.

We are in the process of 'Charting New Markets' in New Zealand & California.

How does it work?

‍1️⃣ Complete our Intelligent Questionnaire:

‍You will be asked to provide information about your personal and/or business circumstances;

2️⃣ Automated Report:

The process uses inbuilt Embedded Lawyer-Logic™ to help you identify key legal risks + concerns and prioritise solutions.

A customised (jargon-free) report is generated in plain english with actionable recommendations.

3️⃣ Deliver Solutions:

You can then consider the information in your own time, and when convenient, select the most appropriate self-service legal documents from our online 24/7 portal or reach out to our legal team to discuss your options in more detail.

‍What does it cover?

🧩 Estate planning;

🧩 Marriage and de facto relationships;

🧩 Tax structuring;

🧩 Dispute avoidance/resolution;

🧩 Investment properties;

🧩 Business sale/purchase;

🧩 Business financing;

🧩 Co-ownership arrangements;

🧩 Managing staff;

🧩 Commercial terms;

🧩 Websites and intellectual property;

🧩 Regulatory compliance.

Why go through this process?

This is an amazing way to quickly + proactively identify legal risks + opportunities to get your legal affairs in order!

Achieve Zen-like “peace of mind” knowing your legal affairs are in order

Our Buccaneer Package is designed for individuals + includes our constantly expanding library of [Self-Service] personal legal documents.

It is compelling value with pricing at less than $1 per day which entitles you to access heavily discounted [members only] prices.

You could save thousands $$$ on your legal bills!

Our Yachtsman Package designed for business owners includes our constantly expanding library of [Self-Service] personal + business legal documents.

It is compelling value with pricing at circa $3.50 per day [equivalent to the price of a cup of tea or coffee!] which entitles you to access heavily discounted [members only] prices.

You could save thousands $$$ on your personal + business legal spend!

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Australian Takedown Notice Checklist

1️⃣ Does the website hold a legally valid licence to use your copyrighted material?

Is it possible that your agent mistakenly issued a licence to use your copyright material on your behalf and failed to notify you?

✅ We recommend you always double-check by asking the website for a copy of its legally valid licence to use your copyright material (if they maintain they have one) before considering whether to issue a Takedown Notice.

2️⃣ Does a "fair dealing" exception apply?

Generally, use of your copyright material will be a "fair dealing" and not constitute an infringement of copyright if it can be classified as occurring for one of the following purposes:

✅ Research or study (refer below);

✅ Criticism or review;

✅ Parody or satire;

✅ Professional legal advice; or for

✅ Reporting the news.

Research or Study

The following additional factors are relevant in deciding whether the dealing for research or study purposes is fair:

⚖️ Purpose and character;

⚖️ Nature of the work;

⚖️ Possibility of obtaining work commercially;

⚖️ Effect of the dealing on the value of the work; and the

⚖️ Amount and substance copied relative to the whole (see table below).

3️⃣ If you are unsure whether a “fair dealing” exception will apply in your situation?

Always seek professional legal advice before sending a Takedown Notice especially if you are unsure regarding the application of the "fair dealing" exception.

4️⃣ Double-Check the details

You will need to double-check that you have provided sufficient information to enable the ISP's designated representative to take the required action to quickly identify + remove your copyright material:

For example: 

✅ The specific infringing URL(s); and

✅ A copy of your copyright material so that it can be easily identified.

If you don’t provide accurate information your Takedown Notice may not achieve the desired outcome + there will most likely be delays caused by requests for further + better information.

5️⃣ Send the Takedown Notice To the Internet Service Provider's (ISP) Designated Representative

The Internet Service Provider (ISP) will usually provide an email address for delivery of the notices.

If not, a hard copy of the Takedown Notice can be posted to the Internet Service Provider's (ISP) nominated address.

USA Hosted Website

For websites hosted in the USA a different process is applicable.

See DCMA Takedown Notice for Online Copyright Infringement.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Legal Background ➲ Australian privacy act 1988 (Comm.)

The Privacy Act and Australian Privacy Principles (‘APPs’) govern the collection, storage, use and disclosure of Personal Information

Australian businesses/NFP's are bound by the Privacy Act if they:

➲ “Opt-in” or publicly volunteer to be regulated;

➲ Handle Personal Information (defined below) + have $3 million or more in annual turnover; or

➲ Are captured by the second set of criteria set out in the Act.

Caution: The additional “second set” of criteria mean that every business or charity regardless of turnover may be caught if they sell or purchase Personal Information or handle specific categories of Personal Information, such as TFN (Tax File Numbers, Health + Medical Data, etc.)

Small business/NFP operators generally are exempt from the Privacy Act unless one of the above-mentioned points apply.

Does your business/NFP need to comply with the privacy act?

Click the below link to access the online guide:

‍Does my Business/NFP need to comply with the Privacy Act?

If you are still unsure you should take the cautious approach and put relevant privacy measures in place as well as seek Independent Legal Advice.

Credits:

This FAQ was extracted from the blog article "Privacy Policies & Australian Law" by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠ which was originally published in late 2018 + is hosted on iubenda's website.  

By way of full disclosure: Blue Ocean Law Group℠ is iubenda's Legal Network partner in Australia + New Zealand.

Blue Ocean Law Group℠ also collaborates with iubenda to present regular free webinars entitled:

“How to make your website/app easily compliant with Australian Law?”

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Australian Consumer Guarantees

Under the Australian Consumer Law (ACL), Australian Consumer Guarantees apply to many products and services you buy regardless of any other warranties suppliers sell or give to you.

It is often assumed that when an express warranty expires a consumer has no legal rights to pursue.

All may not be lost if your express warranty has expired

For example:

If an express warranty against defects is provided it will operate in addition to the Australian Consumer Guarantees.

The express warranty does not limit or replace them.

This means that if you buy a motor vehicle that comes with a three-year or 100,000 km written express warranty outlining what the manufacturer will do if there are certain problems with the vehicle, and a defect becomes apparent outside of the time/usage provided for in the express warranty (that is, 3 years and 1 month, or 105,000 km) there is still a possibility that the Australian Consumer Guarantees may apply!

If you need assistance to understand your rights under Australian Consumer Law we recommend that you contact our legal team.

Further reading: What consumer guarantees automatically apply to products and services sold in Australia?

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

When can an application for a financial Property Settlement be made to the Family Court?

The circumstances governing whether a "de facto” relationship will be imposed by Australian law for the purposes of making an application to the Family Court for a financial property settlement generally can only arise when one of the following legally prescribed circumstances is present [1]:

1️⃣ Two adult persons who are not married or related by family live together as a couple in a "genuine and permanent domestic relationship” for at least two years (this can include more than one period providing it totals at least 2 years);

2️⃣ There is a child of the relationship;

3️⃣ There have been significant contributions made and a serious injustice would result if the court did not make an order or declaration; or

4️⃣ The de facto relationship has been registered in a State or Territory under laws for the registration of relationships.

When does a “de facto” relationship exist?

In the recent case of Radecki & Fairbairn [2020] FamCAFC 307 the Full Court of the Family Court of Australia at Sydney in their judgment dated 11 December 2020, confirmed the relevant law to determine the existence of a de facto relationship from para. 26 as follows:

A de facto relationship exists where a Court finds that the parties were “a couple living together on a genuine domestic basis” (s 4AA(1)(c) of the Act), which is to be decided by reference to the matters set out in s 4AA(2) of the Act, which are as follows:

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;

(i) the reputation and public aspects of the relationship.

In addition, the Court “is entitled to have regard to such matters… as may seem appropriate to the court in the circumstances of case” (s 4AA(4) of the Act).

In a passage which has been frequently quoted and applied when determining the existence of a de facto relationship (see, for example, Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair & Whittaker”) at [55] and Cadman & Hallett (2014) FLC 93-603 (“Cadman”) at [48]), albeit in a different legislative context, Fitzgerald J said in Lynam v Director-General of Social Security(1984) FLC 91‑577 at 79,663:

Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship.

Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation.

Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other.

What must be looked at is the composite picture.

Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.

The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration.

In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

Although not expressly mentioned in s 4AA(2) of the Act, an intention to enter into a de facto relationship or to end one is powerful evidence to be taken into account under s 4AA(4) of Act, in determining whether such a relationship exists or has ended.

Whilst evidence of such intention is not required and, in many cases, is not present, where such an intention can be identified, it can be telling.

Q: Is the definition of de facto relationship different in Western Australia?

A: Technically Yes, as the definitions are not identical. However they are largely similar.

The definition of a de facto relationship in Western Australia is set out in section 13A of the Interpretation Act 1984 (WA).

‍Footnotes:

[1] s. 90SB of the Family Law Act 1975 (Cth.).

[2] Joint judgment of May, Strickland & Ainslie-Wallace JJ reported at 86,682.

[3] Paragraph 94 of the joint judgment of Bryant CJ, Thackray & Aldridge JJ reported at 87,398.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Debt Collection Guidelines

The Australian Competition & Consumer Commission (ACCC) & the Australian Securities & Investments Commission (ASIC) have published:

➲ Joint Debt Collection Guidelines.

Both the ACCC and ASIC enforce Commonwealth consumer protection laws, including laws relevant to debt collection.

The ACCC and ASIC have jointly produced this guideline which aims to assist creditors, collectors and debtors understand their rights and obligations, and ensure that debt collection activity is undertaken in a way that is consistent with consumer protection laws.

The guide was originally published in 2005 and has been updated to reflect significant changes to the law, such as the introduction of the Australian Consumer Law in 2011, the National Consumer Credit Protection Act 2009, and privacy laws and principles.

Source: ACCC Debt collection guideline for collectors & creditors

The Federal Circuit & Family Court of Australia prescribes as mandatory reading the following Fact Sheets.

Whilst it may appear counter-intuitive, starting here will maximise the chances of you resolving your differences +/or settling matters outside of Court.

Marriage, families and separation

This brochure provides information for people considering, or affected by separation or divorce.

It includes information about:

• the social and legal effects of separation;
• the services provided to families by the Federal Circuit & Family Court of Australia and by government, community and other agencies, and
• some of the steps involved in court proceedings.

Pre-action procedure for parenting cases

This brochure provides information for people considering applying to a court for parenting orders.

Pre-action procedures apply to financial cases.

This brochure provides information for people considering applying to a court for financial orders.

Compulsory Family Dispute Resolution
➲ Court procedures and Requirements

For more free information + resources generally

Please refer to our Australian Family Law Resources + Dispute Resolution -> Smart List

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

The legal term Binding Financial Agreement (BFA) is the correct wording to use in Australia for this kind of agreement.

Q: It's the same thing as a prenup right?
A: Yes, sort of …

In order to provide some context, a Binding Financial Agreement (BFA) has in the wider community (including overseas and in the media) commonly and historically been referred to as a Prenuptial agreement or Prenup.

A Binding Financial Agreement (BFA) can be entered at any time

1️⃣ As a Prenup, Postnup, after the parties have separated, or in the case of de facto relationships, at any time in the absence of nuptials altogether; and could alternatively be

2️⃣ Called a Separation Agreement, Cohabitation Agreement or Divorce Agreement.

Just because the name uses the word “Binding” does not make it so!

Whilst the parties may include the word binding in the name or within the body of the agreement, simply using the word binding does not of itself make the agreement legally binding.

Whether a Binding Financial Agreement (BFA) is in fact legally binding* is a determination which can only be made by the Court.

Important Note:

* In order to be legally valid and actually in fact “legally binding”, a Binding Financial Agreement (BFA) must not be susceptible to being set aside by the Court for any reason. ‍

For a detailed discussion of when a Binding Financial Agreement (BFA) can be set aside, please refer to the separate FAQ on this topic.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Increasingly, Australian websites are hosted in the USA 

Just because a web domain is Australian (for example: *.com.au) does not automatically mean that the website content is hosted on an Australian hosting service.

Increasingly, Australian websites are hosted by Internet Service Providers (ISP) from overseas which are often based in the USA.

Q: Does where the website is hosted makes a difference?

A: Yes.

The Pirate Publisher: A Satirical Commentary on the state of copyright laws (pre 1911 treaty)

The Pirate Publisher—An International Burlesque that has the Longest Run on Record by Joseph Ferdinand Keppler, published as a centrefold in Puck, v. 18, no. 468 (1886 February 24).

A commentary on the state of copyright laws that, prior to a 1911 treaty, generally offered no protection to foreign authors and works.

In the cartoon, hordes of German, Norwegian, French, English, and American authors surround a publisher who republishes their newly-created works without attribution or royalties in a foreign country, as international law then allowed.

Of note is W. S. Gilbert, fifth from the right in the front row, as the many unauthorised or "pirate" productions of H.M.S. Pinafore caused him and Arthur Sullivan to première The Pirates of Penzance in America, to at least gain the initial profits there before anyone else could exploit it, and the title and subject of The Pirates of Penzance is sometimes - although somewhat dubiously in my opinion - considered to partially be a reference to the issue of pirate productions of their works. Other authors shown include Mark Twain, Tennyson, Robert Browning, F. C. Burnand, Émile Zola, Jules Verne, Victorien Sardou, Wilkie Collins, Oliver Wendell Holmes, Sr., as well as many others.

Australian Hosted Website "Fair Dealing" Defence v. USA Hosted Website "Fair Use" Defence

It appears that the state of copyright laws have generally improved to offer more protection to Copyright Owners since 1911.

However, as an example: Due to the 'Fair Dealing" v. "Fair Use" distinction between Australian and the USA, Australian Copyright Material today still may be used + hosted on USA ISP's in situations or for purposes which would breach Australian Copyright law.

See this article Fair Use v. Fair Dealing: How Australian Copyright Law Differs to learn more about the differences between the two concepts.

The following examples have been extracted from the above article to help explain what you can do with "Fair Use" on a US Hosted website that you cannot do with "Fair Dealing" on an Australian Hosted website:

adapting to new technologies

Fair Use is flexible enough to adapt to change.

"For example, in the US, Fair Use made it legal to use a VCR to record television at home in 1984.

In Australia, this wasn’t legal until parliament created a specific exception in 2006 – just about the time VCRs became obsolete."

artistic use

In Australia, it’s legal to use copyright material to create a parody or a critique, but not for purely artistic purposes.

"For example, Australian law makes it largely unlawful for a collage artist to reuse existing copyright material to create something new."

uses that document our experiences

"Media forms a big part of our lives, and when we share our daily experiences, we will often include copyright material in some way.

Without Fair Use, even capturing a poster on a wall behind you when you take a selfie could infringe copyright.

In a famous example, Stephanie Lenz originally had an adorable 29-second clip of her baby dancing to a Prince song removed from YouTube, due to her use of the song.

Stephanie Lenz was able to have the video reposted under US Fair Use law – but an Australian wouldn’t have that right."

technical and non-consumptive uses

"The internet we love today is built on Fair Use.

When search engines crawl the web, making a copy of every page they can in order to help us find relevant information, they’re relying on Fair Use.

Under Australian law, even forwarding an email without permission could be an infringement of copyright."

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Click here to download ...

A legally valid* Binding Financial Agreement (BFA) will operate to prevent the Court from being able to make property adjustment orders under the Family Law Act 1975.

A Binding Financial Agreement (BFA) can also deal with spousal maintenance and prevent your former partner from filing an application for spousal maintenance.

Important Note:

* In order to be legally valid and actually in fact “legally binding”, a Binding Financial Agreement (BFA) must not be susceptible to being set aside by the Court for any reason. ‍

For a detailed discussion of when a Binding Financial Agreement (BFA) can be set aside, please refer to the separate FAQ on this topic.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Lease v. Licence to Occupy

Commercial Distinctions

A lease is quite often a significant obligation on the part of businesses. It is both a financial commitment, and a time commitment.

Traditionally, the majority of the time, a business would look for security of tenure, and a landlord for a long-term tenant.

The lease was an appropriate arrangement suiting the needs of both parties equally.

However, an insistence on occupancy by way of a lease on the part of landlord prevents businesses from engaging in more experimental ventures.

With smaller or newer businesses particularly, risks cannot be taken with their business model when they have rent to pay for the coming fortnight; and so rental obligations may push them into a certain conservatism with their business, a reluctance to try different things and be different, for fear of insolvency.

Such risks are often mitigated with a Licence to Occupy affords an occupant many of the same rights as a lessee or tenant under a Lease, though usually for the short-term.

There are other legal distinctions between a lease and a licence, a summary of which can be found below, though the primary difference of interest in a commercial sense is the greater scope of risk-taking a business may undertake with a licence to occupy.

Legal Distinctions

For a more detailed discussion of the commercial and legal differences between these two types of property law agreements please refer to our blog article “Licences to Occupy - A viable Alternative to Leases?" by Suk Jae Chung | Virtual Intern at Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What Powers do the Victorian Courts have when Overarching Obligations are Contravened?

A Victorian Court may take into account a contravention of the Overarching Obligations in exercising any power in relation to a civil proceeding (Civil Procedure Act 2010 s28).

If the Court is satisfied on the balance of probabilities that there has been a breach the Court may make any order it considers appropriate in the interests of justice.

This includes:

1️⃣ An order that a person pay the costs and expenses arising out of a contravention;

2️⃣ An order that legal costs be payable immediately and enforceable immediately;

3️⃣ An order that a person pay compensation for financial loss that was materially contributed to by a contravention;

4️⃣ An order that a person take steps to remedy a contravention;

5️⃣ An order that a person not be permitted to take certain steps in the proceeding;

6️⃣ Any other order the court considers to be in the interests of a person prejudicially affected by the contravention (Civil Procedure Act 2010 s29(1)).

As the Court of Appeal observed in Yara Australia Pty Ltd v Oswal (2013) 41 VR 302, s29 is a unique provision, conferring powers broader than those in any other jurisdiction in Australia, to sanction legal practitioners and parties who fail to meet their overarching obligations (at [17]).

The effect of s29 is to transform the overarching obligations from aspirational to obligatory (Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 at [17]).

As Vickery J explained in Kenny v Gispreal Ltd [2015] VSC 284:

The facility provided by s 29 of the CPA alters the balance in favour of litigants who would otherwise incur a costs burden or suffer loss which was materially contributed to by a contravention of an overarching obligation, and does so in a significant way.

The CPA in this way gives very valuable, and commercially important advantages to litigants.

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Lawyers and the Overarching Obligations

The Overarching Obligations regime has a particular application to legal practitioners in Victorian Courts.

3 points should be noted:

1️⃣ The Overarching Obligations do not override any duty or obligation of a legal practitioner to a client to the extent that the overarching obligations can operate consistently (s13(1));

2️⃣ A legal practitioner or law practice MUST not cause a client to contravene the overarching obligations (s14);

3️⃣ Nothing in the Civil Procedure Act 2010 overrides any duty or obligation of a legal practitioner to the court whether arising under the common law, by statute, or otherwise (s15).

Further reading: FAQ ➲ How do the Overarching Obligations Apply to Lawyers in Victorian Courts?

One of the purposes of the Overarching Obligations is to ensure that a party’s rights are not lost due to the inattention or lack of diligence of the opposing party.

As such, a legal practitioner’s failure to meet the Overarching Obligations may justify the imposition of a costs order against that practitioner on a higher scale than the standard basis (Redline Towing & Salvage Pty Ltd v The Convenor of Medical Panels (No 2) [2012] VSC 483 at [6]).

In Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri [2016] VSC 130, McDonald J at [18] said:

Any practitioner representing a client in proceedings in the Supreme Court of Victoria where the legal costs are disproportionate to the quantum of the claim should expect their conduct to come under very close scrutiny.

The parties and their legal representatives will be held to account.

In Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri, McDonald J was ultimately not satisfied that the defendant’s counsel had breached the Overarching Obligations.

However, the same material relevant to the suspected breach provided the basis for McDonald J to refer the defendant’s counsel to the Legal Services Commission for suspected unsatisfactory profession conduct (at [78]).

A party is not automatically responsible for his or her lawyer breaching an Overarching Obligation. It is only if the party is somehow involved in the breach, such as by giving instructions which are contrary to the Overarching Obligations, that the party also becomes responsible for the breach.

This means that, where a lawyer commits a breach of the Overarching Obligations without instructions, a remedy under s.29 should only be directed at the lawyer (Giles v Jeffrey [2016] VSCA 314 at [110]-[113]).

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Part 4.1 of the Civil Procedure Act 2010 requires 2 Certificates to be filed on commencing a civil proceeding:

1️⃣ An Overarching Obligations certificate (to be made by parties); and

2️⃣ A Proper Basis Certificate (to be made by lawyers).

What are the Overarching Obligations?

There is one Paramount Duty and a further 10 Overarching Obligations.

The Paramount Duty is a duty to the court to further the administration of justice in relation to any civil proceeding (s16).

One manifestation of this Paramount Duty is the duty of lawyers to accurately inform the court of the parameters of the case and the factual and legal issues for determination.

Inaccurate or misleading opening submissions, or submissions which do not have a proper factual or legal basis can impede the administration of justice by leading to a waste of court time and resources (Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri [2016] VSC 130 at [25]).

The Overarching Obligations are to:

1️⃣ Act honestly (s17)

2️⃣ Only make claims that have a proper basis (s18)

3️⃣ Only take steps to resolve or determine the dispute (s19)

4️⃣ Cooperate in the conduct of the civil proceeding (s20)

5️⃣ Not mislead or deceive (s21)

6️⃣ Use reasonable endeavours to resolve the dispute (s22)

7️⃣ Narrow the issues in dispute (s23)

8️⃣ Ensure costs are reasonable and proportionate (s24)

9️⃣ Minimise delay (s25)

🔟 Disclose the existence of documents critical to the dispute (s26).

Due to the Overarching Obligations, a party should not use generic or standard form grounds of appeal which are not adapted to the actual issues in dispute. This puts the court and the other party to the appeal to the trouble and expense of considering grounds of appeal that are not relevant (Toyota v Bendrups & Ors [2016] VSC 718 at [24]).

The Overarching Obligations do not expressly apply to proceedings commenced before the Act commenced on 1 January 2011.

But as the Supreme Court has observed, the ‘underlying principles embodied in the Act, and particularly the ‘overarching purpose’, nevertheless reflect the approach this Court has taken over many years to facilitate the utilisation of scarce court resources’ (Talacko v Talacko [2013] VSC 712 at [79]).

It has been suggested that obligations of the kind embodied in the Act have ‘always existed’ (Yara Australia Pty Ltd v Oswal [2012] VSCA 337 at [10], citing with approval Director of Consumer Affairs v Scully (No 2) [2011] VSC 239 at [21]-[22]).

For a detailed exposition of the common law principles regarding the duties that lawyers and expert witnesses owed before the commencement of the Civil Procedure Act 2010, see Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (Ruling No 8) [2014] VSC 567 [136]-[175]).

Who do the Overarching Obligations Apply To?

The Overarching Obligations apply to:

✅ Any person who is a party (s10(a));

✅ Any legal practitioner or other representative acting for or on behalf of a party (s10(b));

✅ Any law practice acting for or on behalf of a party (s10(c));

✅ Any person who provides assistance to a party and in doing so exercises control or influence over the proceeding, such as an insurer or litigation funder (s10(d));

✅ Expert witnesses (s10(3)).

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Part 4.1 of the Civil Procedure Act 2010 requires 2 Certificates to be filed on commencing a civil proceeding:

1️⃣ An Overarching Obligations certificate (to be made by parties); and

2️⃣ A Proper Basis Certificate (to be made by lawyers).

Certification of Overarching Obligations

‍MUST be filed with the first Substantive Document in the civil proceeding filed by each party.

s. 41(2) of the Civil Procedure Act 2010 (Vic).

Section 3 defines ‘Substantive Document’ as:

(a) an originating motion;

(b) a writ that includes—

(i) a statement of claim; or

(ii) a statement sufficient to give, with reasonable particularity, notice of the nature of the claim, its cause and the relief or remedy sought;

(c) a complaint;

(d) a defence or a notice of defence;

(e) a reply;

(f) a counterclaim;

(g) an answer to a counterclaim or a response to an answer to a counterclaim;

(h) a claim by third party notice or a response to a claim by third party notice;

(i) a claim by fourth or subsequent party notice or a response to a claim by fourth or subsequent party notice;

(j) an application brought in accordance with section 93(4)(d) of the Transport Accident Act 1986 or a response to an application brought in accordance with that section;

(k) an affidavit which commences a civil proceeding or an affidavit which is the first response of a party in a civil proceeding;

(l) a summons which commences a civil proceeding or a summons which is the first response of a party in a civil proceeding;

(m) an application which commences a civil proceeding or an application which is the first response of a party in a civil proceeding;

(n) a notice of referral under section 80 of the Land Acquisition and Compensation Act 1986 or a response to a notice of referral under that Act;

(o) a claim for contribution against another party under Part IV of the Wrongs Act 1958 or a response to a claim for contribution against another party under that Part;

(p) an application for leave to appear and defend under the Instruments Act 1958;

(q) a claim for preliminary discovery;

But does NOT include—

(r) a summons for taxation of costs;

(s) an application to a court for punishment of a person for contempt of court;

(t) an application for a rehearing under section 110 of the Magistrates’ Court Act 1989;

(u) an application under section 60(2) of the Accident Compensation Act 1985;

(v) an application under section 24 of the Second-Hand Dealers and Pawnbrokers Act 1989;

(w) an application under section 83 of the Occupational Health and Safety Act 2004;

(x) any process which commences an appeal or any process which is the first response of a party to an appeal;

(y) any process which commences proceedings under the Corporations Act or the ASIC Act or any process which is the first response of a party to proceedings under either of those Acts;

(z) any originating motion filed under Chapter III of the Rules of the Supreme Court.

Certification of Proper Basis

A party’s legal practitioner MUST make Proper Basis Certification whenever it files its first Substantive Document or when it files any subsequent Substantive Document which:

⚖️ Adds or substitutes a party;

⚖️ Makes, adds or substitutes a claim or cause of action;

⚖️ Makes, adds or substitutes a substantive defence or substantive matter by way of response or reply;

⚖️ Makes, adds or substitutes a material allegation, denial or non-admission of fact or law;

⚖️ Makes any significant amendment to a first substantive document or a subsequent substantive document (s42(1)).

Court rules may be made which provide for other circumstances in which Proper Basis Certification MUST be made, or the court may direct that certification be made in any proceeding (s42(1)).

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

An Affidavit is sworn evidence (generally sworn either on the bible or other religious text^ or by giving a non-religious affirmation) while a Witness Statement is unsworn.‍

^ Although a common practice. It is no longer necessary for a religious text to be available when swearing an Affidavit in NSW due to amendments to the Oaths Act introduced by Schedule 2 of the Identification Legislation Amendment Act 2011) and the Oaths Regulation 2011 (NSW).

Maker of the Witness Statement Required to Formally Adopt the Statement in the Witness Box

Another important difference between an Affidavit and a Witness Statement is that before the contents of a Witness Statement can become formal evidence as to the truth of the matter, the maker of the statement MUST adopt the statement in the witness box after being formally 'sworn in'.

Filed Affidavit becomes evidence once it is formally 'read' in Court by Counsel seeking to rely upon the Affidavit

The maker of the Affidavit, known as the deponent, still needs to attend Court in most cases as they will usually be required for cross-examination.

Credits:

This FAQ is extracted from page 201 of the Practitioner's Guide to Civil Litigation 4th edition published by the NSW Law Society (Civil Litigation Committee).

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

You have the right to remain silent … in your civil legal dispute

By the time you approach a lawyer to assist with your civil legal dispute you may have already discussed the matter in detail or sent text messages/emails to the other party, their agent, insurance company or lawyers.

Whilst you might think you are progressing the matter:

➲ This is generally a mistake!‍

Most people [unless they are experienced in litigation or legal dispute resolution] will unknowingly proceed to make these communications with the other side on an "open” basis.

This means that everything that is said or written might be capable of being used by the other parties in any subsequent legal proceedings.

We recommend you don't say or write anything until you have spoken to your lawyer

It is generally known that in any criminal matter, you have the “right to remain silent …” as this is well-covered territory on TV/Movie Legal Dramas and in the media.

When it comes to civil disputes we recommend you adopt the same position.

Our advice may be spot on when it comes to large $$ civil disputes.

Proceeding without your lawyer

When the matter is only a minor one, you may not want to go to the time and/or expense of engaging legal advice specific to your situation.

Q: How then can you proceed?

A: Very carefully, and with the assistance of some very specific legal phraseology which you may or may not have seen before.

Please refer to our blog article “How to cast a magic legal spell? The protection afforded by Without Prejudice Settlement Negotiations." for more information.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Can the BFA be set aside if it represents a “Bad Deal” for one of the parties?

In the case of Hoult & Hoult [2013] FamCAFC 109 Strickland and Ainslie-Wallace JJ opined at para. [310]:

“ … The point of the legislation is to allow the parties to decide what bargain they will strike, and provided the agreement complies with the requirements of section 90G(1) they are bound by what they agree upon.  

Significantly, in reaching agreement, there is no requirement that they meet any of the considerations contained in section 79 of the Act, and they can literally make the worst bargain possible, but still be bound to it."  

Setting aside a Binding Financial Agreement (BFA)

If any of the following apply the Binding Financial Agreement (BFA) can be set aside by the courts:

1️⃣ A party did not receive independent legal advice prior to signing the BFA

2️⃣ A party has received inadequate or wrong legal advice from their lawyer prior to signing the BFA

3️⃣ A party was advised by a lawyer but they were not an Australian Lawyer

4️⃣ The BFA was signed under duress

Make sure there is plenty of time.

Watch out for the looming wedding date which could provide a basis for a claim of undue influence or duress.

5️⃣ The BFA was signed under undue influence

If a party does not have a good command of English, DO NOT allow the intended partner or a relative to act as an interpreter.

This may lead to allegations of undue influence or duress or that the party did not understand the BFA.

6️⃣ Fraud/Unconscionable conduct was involved

Failure to make full and complete disclosure of all material matters constitutes “Fraud”

If a party to a Binding Financial Agreement (BFA) is aware of relevant information and does not disclose it to the other party, whether intentionally or non-intentionally, the Court may set the agreement aside at a later date, under section 90K of the Family Law Act:

"A court may make an order setting aside a financial agreement if and only if, the court is satisfied that: the agreement was obtained by fraud (including non-disclosure of a material matter)…"

What might constitute “Fraud” in the context of a BFA?

❌ If a party fails to disclose the true extent or value of his or her assets.

This might occur, by way of example, if a party:

➲ Hides assets;

➲ Mistakenly assumes the assets don't need to be disclosed, such as property held in the name of a Trust which they directly control, or property held overseas which the other party knows nothing about, or cryptocurrency they have forgotten they own but could become worth a material sum;

❌ Not disclosing the true value of assets, or material information which could assist to determine the true value of assets;

❌ Failure to disclose other material information which would impact on a person's decision to enter into the Binding Financial Agreement; or

❌ Deceiving the other party in some way, in order to induce them to sign the Binding Financial Agreement.

In such a case, he or she would create an inherent weakness in the Binding Financial Agreement, leaving the possibility open for it to be challenged at a later date by the disgruntled ex-partner.

7️⃣ There has been a material change in circumstances relating to the care. welfare and development of a child …

Family Law Act 1975 (Cth.)

90K         Circumstances in which court may set aside a financial agreement or termination agreement

(1)          A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:

…

(d)          since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or

…

8️⃣ Lawyers' Laundry List of Avoidable Mistakes

These avoidable mistakes made by one or both of the parties lawyers were incapable of rectification by the Court.

This meant that the Court had no choice but to invalidate and set aside the BFA in the following situations:

➲ The wrong type of Binding Financial Agreement was entered;

➲ There were mistakes in one or both of the Lawyer's Certificates;

➲ The BFA was executed by a party before receipt of legal advice;

➲ Out-dated Lawyer Certificates were used;

➲ The lawyer failed to record the advice provided and have the party sign an acknowledgement of having received the advice;

➲ There were other legally technical matters wrong regarding the BFA such as it being signed in counterparts or a translator was delegated to provide the legal advice.

9️⃣ The BFA was entered to defraud or defeat the interests of third parties

❌ If a party enters a BFA for the purpose of defrauding or defeating the interests of creditor/s or another person who might claim rights due to the existence of an additional de facto relationship.

What is the effect of setting aside the BFA?

If a Binding Financial Agreement (BFA) is set aside, it means that it is “as if” the original agreement never existed.

Either party is then free to commence proceedings seeking a property settlement and/or spousal maintenance.

By Mutual Agreement: Update BFA or file Consent Orders with the Court

If at anytime, for any reason both parties agree, the parties could decide to replace the BFA with an alternative or updated BFA.

Important: All of the above notes regarding setting aside a BFA, apply to any alternative or updated BFA.

The same rigor must be applied. New certificates of independent legal advice must be obtained, etc.

If the parties have separated, it is also possible for the terms of a BFA to be overridden by consent orders filed with the Court (subject to amendment by the Court if they are deemed not to be fair and equitable).

‍Note:  

The legal term “set aside” means to declare a legal agreement, decision or process to be invalid.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Any property orders made by the Court are made "as at the date of the Court Orders"!

A common misconception parties have is that financial property settlements are finalised by the Court as at the date of separation or divorce (if applicable).

The false belief is that what they earn/gain/lose and what their ex. earns/gains/loses after they are separated is somehow set aside from the net asset pool that existed as at the date of separation and does not form part of the property settlement.

Be prepared to continue sharing everything after separation … at least until you can make a "clean break".

The best way to highlight the potential outcomes which could occur if your property settlement is delayed is to provide some extreme scenarios.

If you win the lotto or inherit a fortune after your are separated but before you reach a final and binding settlement then you need to be prepared to share your windfall with your ex!

Likewise, if for example, your ex. incurs debts after separation, be prepared to share these debts as well (at least until the date the final and binding settlement is made).

You need to be fully aware that any savings you or your ex. set aside after separation (incl. superannuation contributions), gains you or your ex. make or debts or losses you or your ex. incur after separation are included in the net asset pool to be settled between you both.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

A: No.

A Binding Financial Agreement (BFA) can be entered into before or after the separation of a couple, including before, during, or after marriage or a de facto relationship.

Court Orders can only be applied for and made after the separation of a couple.

There is no prescribed waiting time or need to wait to be officially divorced.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Generally speaking, to help ensure you obtain the best possible outcome, it is recommended that as soon as practical you:

1️⃣ Proceed to obtain legal advice;

2️⃣ Instruct your lawyer to inform the other side that you have a claim against them, and attempt to settle the matter; and if this is not successful

3️⃣ Proceed to take steps to enforce your legal rights without any further delay.

Apart from the risk of the lapse of any Statute of Limitations Period, if your claim seeks equitable relief, failure to provide notice to the defendant that you have a claim and intend to enforce it, may open the door to allow the defendant to seek reliance on the equitable defence of laches, or more generally estoppel with the circumstances of the case unfolding in support of these defences the longer the defendant is able to show inaction on your part.

What is the equitable defence of laches?

Laches is a defence only available to a defendant in equity, where a plaintiff's lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, is viewed as conduct which allows the defendant to develop a belief that the plaintiff will not be seeking to make any claim and to continue about their life dealing with their affairs in reliance on this belief. Wikipedia

In Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291 at para. [635] per McLure P considered:

"Whether the conduct of the plaintiff amounted to an acquiescence or caused the defendant to alter their position in reliance on the plaintiff’s acceptance of their actions”.

Consequently, a defendant may be able to argue the equitable defence of laches on a much shorter time frame than the relevant statutory limitation period.

In Hourigan v Trustees Executors and Agency Co Ltd (1934) 51 CLR 619 per Rich J:

The Court will not “disregard the election of the party not to institute his claim and treat as unimportant the length of time during which he has slept upon his rights and induced the common assumption that he does not possess any”.

In Gillespie & Ors v Gillespie [2013] QCA 99 MARGARET WILSON J (with whom MARGARET McMURDO P & WHITE JA agreed) at para. [79] of her judgment provided a summary of the applicable law regarding the equitable defence of Laches:

"Laches is an equitable doctrine, under which delay can bar a claim to equitable relief."

Deane J (with whom Mason CJ agreed) observed in Orr v Ford that the ultimate test is that enunciated by the Privy Council in Lindsay Petroleum Co v Hurd –

“… whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable ‘to place him if the remedy were afterwards to be asserted’: see Erlanger v New Sombrero Phosphate Co, and also, per Rich J, Hourigan.”

The learned authors of Meagher, Gummow and Lehane’s Equity Doctrines and Remedies posit that there are two types of laches –

(i)         delay with acquiescence, where prejudice to others need not be shown; and

(ii)        more commonly, delay with prejudice to others.

However, in Fisher v Brooker Lord Neuberger said –

“Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, 239-240, Lord Selborne LC, giving the opinion of the Board, said that laches applied where ‘it would be practically unjust to give a remedy’, and that, in every case where a defence ‘is founded upon mere delay… the validity of that defence must be tried upon principles substantially equitable’.

He went on to state that what had to be considered were ‘the length of the delay and the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy’.”

Trying the validity of the defence on equitable principles involves the balancing of equities.  

In Erlanger v New Sombrero Phosphate Co Lord Blackburn said –

“…it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it.

The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.”

And in Fysh v Page Dixon CJ, Webb and Kitto JJ said –

“If a plaintiff establishes prima-facie grounds for relief the question whether he is defeated by delay must itself be governed by the kind of considerations upon which the principles of equity proceed.

If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an unfair prejudice on the opposite party, these are matters which may suffice to answer the prima-facie grounds for relief.”

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is a counter-notice?

The owner of the Australian hosted website who you have alleged is infringing copyright by serving the Internet Service Provider (ISP) with a Takedown Notice may issue a Counter Notice claiming there has been a mistake and they dispute that the material infringes your copyright.

The Internet Service Providers (ISP) must then restore, or enable access to, the copyright material on its system or network; unless you provide notice, within 10 working days of receiving the Counter-Notice, that you or your agent have commenced legal proceedings seeking a Court order to restrain the activity that is claimed to be infringing.

The prescribed form of the Counter-Notice is contained within Schedule 2 of the Copyright Regulations 2017 (Comm.).

This means that you will need to issue legal proceedings if you want the material to be permanently removed.

It will then be up to the Court to determine whether the publishing of the material on the website is an infringement of copyright or whether there is a valid defence to the claim of infringement of copyright.

Important: If the website can prove that your Takedown Notice was unfounded then you may be liable for damages or other civil penalties.

Please also be aware that it may be a criminal offence to issue a Takedown Notice knowing that it is false or misleading.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

The answer to this FAQ will ultimately be a question for your Accountant

Before you brainstorm the bricks n' mortar portion of your business plan, we strongly recommend you read + consider this FAQ to learn how adopting a more nimble business model which includes the use of a short-term Licence to Occupy (might be used to provide your business with a strategic advantage).

Other business benefits could also accrue, such as the opportunity to combine multiple + adaptive physical store presence with online eCommerce sales.

Why is this important?

If an agreement does not meet the definition of a "Lease" under AASB 16 Leases, then it is not accounted for on-balance sheet.

Why is this especially important for Commercial + Retail Property tenants?

The following observations have been extracted (emphasis added) from the PWC report entitled: Why the new standard matters to the Retail and consumer industry

The retail industry is likely to be one of the most affected by the new standard, given the significant use of rented premises for their stores. The PwC Global Lease Capitalisation study indicated that there would be a median debt increase of 98% for retailers, and 41% median increase in EBITDA.

Most of such leases are in the form of medium term leases (generally 3-5/9 years),whether in premium locations (flagship stores), shopping centres or ordinary outlets …

Historically such leases have been considered as operating leases, and have not therefore had any impact on the balance sheet.

The amount recorded in the income statement was typically on a straight line basis and entirely included in operating expenses. The new lease standard will not only have an impact on the balance sheet, but also on the operating costs, with a split of the expense between operating and finance costs.

The exemption for short-term leases and small assets is unlikely to provide any significant relief to retailers.

A Licence to Occupy is prima facie caught by the definition of "Lease" under AASB 16?

Under AASB 16, a "Lease" is defined as an agreement, or part of an agreement, that conveys the right to control the use of an identified asset.

The definition does not refer to an agreement labelled as a Lease.

Agreements not labelled as a Lease may meet the definition of a lease under AASB 16; conversely, an agreement labelled as a Lease may not meet the accounting definition of a Lease.

In assessing whether an arrangement is, or contains, a Lease, 3 key assessments need to be made.

These are presented diagrammatically below …

Where the lawyer's role becomes clear ➲ The exemption for short-term leases!

In the majority of cases, the use of a Licence to Occupy (typically being a short-term arrangement) will qualify for the short-term lease exemption, meaning that it represents an alternative method to circumvent the application of AASB 16 which means that such arrangements can potentially (subject to confirmation from your accountant!) remain off-balance sheet.

The use of a Licence to Occupy is therefore an increasingly important proactive strategic legal tool to consider when your business plans for the control or use of any property.

The technical details of the exemption

The following summary (in technical speak) has been extracted (emphasis added) from the KPMG article AASB 16 Check: Short-term and low value exemptions

The low value and short-term lease exemptions are available to lessees (tenants) only.

*A short-term lease is a lease that, at the commencement date, has a lease term of 12 months or less.

A lease that contains a purchase option is not a short-term lease.

The election for short-term leases shall be made by class of underlying asset to which the right of use relates [AASB 16: 8].

***The following lease expenses are not required to be disclosed:

Expenses relating to leases with a term of one month or less; and

Expenses relating to leases which are both low-value and short-term [AASB 16:53(c-d)].

Accounting Humour

I stumbled upon the following quote in conducting research for this FAQ and thought it worthy of further dissemination.

Extracted (emphasis added) from the article by David H. from the Queensland Audit Office: Do you have any ‘lease agreements’ that are not leases, or any hidden leases?

When discussing leases, it is useful to refer to the quote by Sir David Tweedie, the then Chairman of the International Accounting Standards Board (IASB) on April 25, 2008 when he said:

"One of my great ambitions before I die is to fly in an aircraft that is on an airline’s balance sheet."

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

AUSTRALIANS CAN NOW INSURE THEMSELVES AGAINST LOSS AT TRIAL

Australian claimants looking to protect themselves against a loss at trial can now insure themselves locally instead of sourcing cover from overseas

In late 2016, Aon announced the first Australian “After the Event” (ATE) policy for claimants looking to protect themselves against a loss at trial through underwriter Ironshore Australia Pty Ltd.

ATE insurance protects claimants, whether a client or a law firm, by partially deferring payment of the premium, and payment is contingent on the success of the claim.

Eden Fletcher, National Financial Lines Placement Manager, Aon Risk Solutions Australia said this was a significant step for the Australian legal system.

“ATE insurance has been established in the UK for some time and Australian clients have been able to access the cover by going abroad. However, the overseas policies are not made with the Australian market and legislative system in mind. By being able to now access the product here, it will give clients comfort the product is fit for purpose, and is commissioned by local lawyers,” he said.

“Australia has become the most likely jurisdiction outside of the USA in which a corporation will face significant class action litigation. The risks and costs of fighting these cases are high, most are settled before they reach the courts. With a local solution now available, this provides solicitors with an opportunity to take on more cases as their client’s representative, given the client will have the protection of this insurance,” Mr Fletcher said.

The intention of this policy is not to encourage litigation, since premiums provide an incentive to settle early rather than progress deeper into trial, with the rate varying according to the stage at which the litigation is settled.

“We believe ATE insurance will be eagerly explored by law firms acting for the claimant, as it will make a higher percentage of potential class actions even more viable than present, subject to the merits of the case. When there is ATE insurance behind the case, it validates the case has a reasonable chance of success given Ironshore’s due diligence and underwriting methodology,” Mr Fletcher said.

To find out more about ATE litigation insurance:

➲ Contact Us.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

What is a Force Majeure clause?

A force majeure clause is a method of allocating the risk of a disruptive event. It is a broad catch-all provision whereby the parties list categories or specific instances of otherwise frustrating events, together with the party or parties to bear the risk of the event occurring.

The clause can also grant options to vary, suspend or terminate the contract to one or more of the parties. [1]

Force majeure clauses form part of a contract’s express terms, subject to the conventional methods of construction.

Absent a force majeure clause, it is unlikely a contract’s commercial purpose would suggest that such a provision is so apparent that it goes without saying [2], meaning a court is likely to refuse to imply it.

Further Reading:

For a more detailed discussion please refer to our blog article “Force Majeure Clauses & Frustration: Why the COVID-19 Pandemic is a Wake-Up Call" by Shakvaan Wijetunga | Virtual Intern at Blue Ocean Law Group℠.

Footnotes:

[1] Eg., Yara Nipro P/L v Interfert Australia P/L [2010] QCA 128, [26].

[2] BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, 283.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

The book “Pleadings without Tears: A Guide to Legal Drafting Under the Civil Procedure Rules” by William Rose [revised & updated by Roger Eastman] we have in our law firm library in its 9th edition when it was published in 2017.

More editions of this highly valued & trusted guide will no doubt ensue.

The book was originally written back in 1990 specifically to address the problem of tears being shed over mistakes being made in Pleadings.

Trust me when I say that despite all the warnings, mistakes in Pleadings continue to this day.

There are good reasons why you don't want to be the party left crying over what could have been!

What are Pleadings?

Whether you are a self-represented litigant in a Tribunal or represent by a Solicitor or a Barrister in a Court or Tribunal the "Pleadings" will be the sum total of all of the documents containing the application or claim, the defence and counterclaim, the reply or answer, and any requests for and responses to further and better particulars.

In the case of an appeal, think of the pleadings as your stated grounds of appeal within your Notice of Appeal, etc. if you get these wrong then your appeal is likely to be dismissed or struck out before you have had the chance to actually submit the details of your appeal to the appeal court.

Why are Pleadings so important in Civil Litigation?

When you hear the member/judge say the words "the problem is in the Pleadings" or words to that effect you might need to have your tissues on hand.

A great analogy is baking a cake and discovering too late that you left out a key ingredient.

There is no guarantee you will be able to amend the Pleadings to fix the problem at the last minute.

You are generally prevented from making the same claim more than once.

Your missed claim may now be subject to the statute of limitations preventing it from being commenced as it is out of time.

An error in the Pleadings can be irreversibly fatal to the outcome of the civil litigation, or substantially impact on the result or the award of costs once the legal proceedings have completed.

A failure to state valid grounds grounds of appeal within a Notice of Appeal may cause your appeal to be dismissed or stuck out, with the potential for cost orders to be made against you for the other parties legal costs (if any) incurred in responding to your incompetent or deficient Notice of Appeal.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

x Penalty Units = $y

When government legislation imposes a maximum penalty for a civil or criminal offence the maximum amount payable is generally specified in the form of a maximum number of Penalty Units.

The amount to apply per Penalty Unit to calculate the maximum Penalty payable varies amongst the Federal and State/Territory jurisdictions and is subject to change at any time, with some jurisdictions applying an automatic indexation mechanism.

Example

In NSW a reference to a maximum penalty of 5 penalty units means a maximum penalty of $550.

What are the current applicable rates?

As at the date of this FAQ the following amounts per Penalty Unit are detailed below:

ACT ➲ $160 per unit [individuals] / $810 per unit [corporations] (Since 8 Nov 2018);

Comm ➲ $222 per unit (Since 1 July 2020);

NSW ➲ $110 per unit (Since 1 September 1997);

NT ➲ $157 per unit (Since 1 July 2021);

Qld ➲ $137.85 per unit (Since 1 July 2021);

SA ➲ South Australia does not have a system of penalty units.

Instead, legislation either lists specific fine amounts or maximum "divisional penalties" which form a standard scale.

Vic ➲ $181.74 per unit (Since 1 July 2021);

Tas ➲ $173 per unit (Since 1 July 2021);

WA ➲ Varies (Penalty units are set for different categories of legislation. Traffic offences generally incur a penalty unit of A$50.

This Wikipedia link may be a useful as a quick resource to make an initial-check regarding whether any of the Penalty Unit rates may have changed.

Who is the Penalty Unit payable to?

Whilst is maybe assumed that the Penalty is payable directly to the person or party (if applicable) who has endured or been the victim of the offence this is not generally the case.

A Penalty is generally payable to the relevant government treasury.

In NSW this is the NSW Office of State Revenue.

Who can commence proceedings for the imposition of a civil or criminal penalty?

Generally speaking the proceedings for the imposition of a civil or criminal penalty are made by the relevant Minister or an authorised official rather than an applicant in a civil matter.

Example: Residential Tenancies Act 1987 (WA)

The Commissioner for Fair Trading is the only person who may prosecute a party for an offence committed under s.9 of the Residential Tenancies Act 1987 (WA).

Example: Civil Offences against the Residential Tenancies Act 2005 (NSW) and Penalties

RESIDENTIAL TENANCIES ACT 2010 - SECT 203

Penalty notices

203 Penalty notices

(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.

(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.

(3) The Fines Act 1996 applies to a penalty notice issued under this section.Note : The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.

(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).

(5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.

(6) In this section,
"authorised officer" means a person authorised in writing by the Secretary as an authorised officer for the purposes of this section.

Can a Tribunal decide the penalty payable for the civil penalty?

Generally speaking the imposition of penalties for offences triggering civil penalty provisions (not specifically granted by the Tribunal's enabling legislation) are matters for a Court.

Example: Civil Offences against the Residential Tenancies Act 2005 (NSW)

202   Nature of proceedings for offences

(1)  Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court (emphasis added).

…

(3)  The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act is 50 penalty units or such other amount as may be prescribed by the regulations.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Digital Millennium Copyright Act (DMCA) Takedown Notice Procedure

Just because a web domain is Australian (for example: *.com.au) does not automatically mean that the website content is hosted on an Australian hosting service.

Increasingly, Australian websites are being hosted by overseas service providers which are often based in the USA.

The Digital Millennium Copyright Act (DMCA) is U.S. legislation which prescribes the DCMA Takedown Notice + DCMA Counter-Notice procedures.

Under the Digital Millennium Copyright Act (DMCA) there is no prescribed form for the DCMA Takedown Notice.

Minimum requirements for a DMCA Takedown Notice

1️⃣ State that you hold a "good faith belief" that the use of the copyright material in such a fashion is not authorized by the copyright holder, the copyright holder's agent, or the law;

2️⃣ State that the information contained in the DCMA Takedown Notice is accurate and that you are authorized to act on the behalf of the exclusive copyright holder for the material in question;

3️⃣ Make all your statements contained within the DCMA Takedown Notice under penalty of perjury (a.k.a a sworn declaration) in a United States Court of law; and

4️⃣ Include your physical or electronic signature.

What does "under Penalty of Perjury" mean?

A sworn declaration (also called a sworn statement or a statement under penalty of perjury) is a document that recites facts pertinent to a legal proceeding. It is very similar to an affidavit but is not witnessed and sealed by an official such as a notary public. Instead, the person making the declaration signs a separate endorsement paragraph at the end of the document, stating that the declaration is made under penalty of perjury. In the USA, the crime of perjury is a felony.

Example: Endorsement paragraph

I declare (or certify, verify, or state) under penalty of perjury that the above is true and correct. Executed on (date).

Be Specific + Accurate

You should make sure that you are specific and accurate when outlining the material you wish to have removed.

This is extremely important as you are making statements under penalty of perjury, but also due to the following practicalities:

✅ The volume of Digital Millennium Copyright Act (DMCA) Takedown Notices issued in the US is high; and

❌ Incomplete or inaccurate submissions are routinely rejected.

Australian "Designated Representative" ➲ USA "Copyright Agent"

Under the Digital Millennium Copyright Act (DMCA) the term "designated representative" we use in Australia is replaced by an equivalent term "Copyright Agent".

Therefore, you should look for the nominated Copyright Agent when you search for the person responsible for Digital Millennium Copyright Act (DMCA) Takedown Notices on any U.S. based website hosting service.

Australian Hosted Website

For websites hosted in Australia a different process is applicable.

See Takedown Notice for Online Copyright Infringement.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a USA Attorney for legal advice specifically tailored to your needs & circumstances.

NSW Workers Compensation Commission (WCC): Appeal Procedure

1️⃣  If an appeal is to be made against the decision of an Arbitrator, the application must be made to the Registrar, within 28 days of the Arbitrator’s decision, to have the appeal heard by a Presidential member: Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 352(1)-(2)(‘The 1998 Act’); Workers Compensation Commission Rules 2011 (NSW) r 16.2.

2️⃣  If an appeal is to be made against the decision of a Presidential member, the appeal lies to the NSW Court of Appeal: The 1998 Act s 353(1), (5); Supreme Court Act 1970 (NSW) s 48(1)(a)(vii), (2)(f).

3️⃣  If the appeal being made relates to any of the following a Summons Seeking Leave [that is, consent] to Appeal to the Court of Appeal is required: The 1998 Act s 353(4):

353 APPEAL AGAINST DECISION OF COMMISSION CONSTITUTED BY PRESIDENTIAL MEMBER

…

(4) The following appeals under this section may be made only with leave of the Court of Appeal--

(a) an appeal from an interlocutory decision,

(b) an appeal from a decision as to costs only,

(c) an appeal where the amount of compensation in dispute is less than $20,000 (or such other amount as may be prescribed by the regulations),

(d) an appeal from a decision made with the consent of the parties.

4️⃣ The rules applying to the general procedure in appealing to the NSW Court of Appeal, as set out in this FAQ apply to appeals against a decision of a WCC Presidential member: Uniform Civil Procedure Rules 2005 (NSW) r 51.1 (‘UCPR’).

Credits:

The above overview of the NSW Workers Compensation Commission (WCC) Appeal procedure was prepared by Shakvaan Wijetunga | Virtual Intern, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

NSW UCPR Procedure to file a valid timely Appeal to the NSW Court of Appeal:

1️⃣ If a Notice of Intention to Appeal (NSW UCPR Form 103) is to be filed with the Court of Appeal, it must be done so within 28 days after the material date: Uniform Civil Procedure Rules (NSW) 2005 NSW UCPR r 51.8; Supreme Court Act 1970 (NSW) s48(1)(a)(iv).

Note: The filing and service of a Notice of Intention to Appeal (NSW UCPR Form 103) is not an originating process and DOES NOT operate to commence proceedings in the Court of Appeal: NSW UCPR r 51.9 (3).

2️⃣ The material date in this case is the date of judgment or determination of the decision being appealed.

3️⃣ The effect of filing a Notice of Intention to Appeal (NSW UCPR Form 103) is to extend the clock from 28 days to 3 months from the material date within which a Notice of Appeal (NSW UCPR Form 105) is to be filed: NSW UCPR rr 51.6, 51.9(1)(a).

4️⃣ The reason for such an effect is that if a Notice of Intention to Appeal (NSW UCPR Form 103) is not filed, the Notice of Appeal (NSW UCPR Form 105) itself must be filed within 28 days of the material date: NSW UCPR r 51.16(1)(c).  

5️⃣ Failure to lodge a Notice of Intention to Appeal (NSW UCPR Form 103) within the 28-day limitation requires two main steps to be taken:

➲ The Notice of Appeal (NSW UCPR Form 105) to be submitted; and

➲ An extension of time to be sought within that notice.

6️⃣ For the request for an extension of time, details regarding the following matters must be proffered:

➲ Explanation for the delay;

➲ No prejudice was suffered by the respondent due to the delay;

➲ The application has a real prospect of success;

➲ That the relief sought is within the Court’s jurisdiction;

➲ A compartmentalised outline of the issues/grounds of appeal to be raised.

7️⃣ Failure to satisfy the criteria set out in paragraph 6️⃣  above, which involves explaining away the delay and filing an arguable case, will result in a refusal by the Court to grant an extension of time, and accordingly, an unsuccessful appeal: Fisher v Roads and Maritime Services [2018] NSWCA 295, [5]-[7], [9], [17]-[18].

8️⃣ At the same time or before the filing of the Notice of Appeal (NSW UCPR Form 105) a Summons Seeking Leave to Appeal (NSW UCPR Form 104), if leave to appeal is required (Legal advice is strongly recommended on this point) must be filed and served on each necessary party: NSW UCPR rr 51.9, 51.10.

Note: Where the subject matter of an appeal is not a monetary sum or the matter at issue amounts to the value of less than $100,000, parties must seek leave to appeal: s 101(2)(r) Supreme Court Act 1970 (NSW).

9️⃣ A copy of the Notice of Intention to Appeal (NSW UCPR Form 103) +/or Notice of Appeal (NSW UCPR Form 105) + Summons Seeking Leave to Appeal (NSW UCPR Form 104) (if applicable) must also be filed in the Court registry of the Court below or or a copy lodged with the officer of the Court below: NSW UCPR r 51.42.

🔟 If a Summons Seeking Leave to Appeal (NSW UCPR Form 104) needs to be filed, it can include the request for an extension of time (if applicable): NSW UCPR r 51.10(3).

Court Published Resources:

‍Practice Note No. SC CA 1

Common Procedural and Preliminary Issues arising in Court of Appeal Proceedings

Credits:

The above overview of the NSW UCPR Court of Appeal procedure was prepared by Shakvaan Wijetunga | Virtual Intern, Blue Ocean Law Group℠

Minor updates + Court Published Resources added by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

DMCA Takedown Notice Checklist

1️⃣ Does the website hold a legally valid licence to use your copyright material?

Is it possible that your agent mistakenly issued a licence to use your copyright material on your behalf and failed to notify you?

✅ We recommend you always double-check by asking the website for a copy of its legally valid licence to use your copyright material (if they maintain they have one) before considering whether to issue a Digital Millennium Copyright Act (DMCA) Takedown Notice.

2️⃣ Does a "Fair Use" exception apply?

"Fair Use" is a concept used in the US copyright law.

It is a much more flexible, open-ended concept and does not apply in Australia.

In Australia, we use a more limited concept called "Fair Dealing".

See this FAQ: Australian Hosted Website v. USA Hosted Website: Does where the website is hosted make a difference? to learn more about the differences between the two concepts.

The following has been extracted from the Stanford Article, Measuring Fair Use: The Four Factors

The following 4 (arguably 5) factors are relevant in deciding whether the dealing is fair using a Balancing Test:

➲ The Transformative Factor: Purpose and Character of the Use,

➲ The Nature of the Copyrighted Work;

➲ Effect of the Dealing on the Potential Market/value of the work;

➲ Amount and substance copied relative to the whole; and the

➲ The "Fifth" Fair Use Factor: Are you good or bad?

3️⃣ Always ensure you obtain legal advice from a practising USA Attorney regarding whether a “Fair Use” exception will apply in your situation?

4️⃣ Double-Check the details

You will need to double-check that you have provided sufficient information to enable the Internet Service Provider's (ISP) Copyright Agent to take the required action to quickly identify + remove your copyright material:

For example: 

✅ The specific infringing URL(s); and

✅ A copy of your copyright material so that it can be easily identified.

If you don’t provide accurate information your Digital Millennium Copyright Act (DMCA) Takedown Notice may not achieve the desired outcome + there will most likely be delays caused by requests for further + better information.

5️⃣ Send the DMCA Takedown Notice To the Internet Service Provider's (ISP) Copyright Agent

The Internet Service Provider (ISP) will usually provide an email address for the delivery of notices.

If not, a hard copy of the Digital Millennium Copyright Act (DMCA) Takedown Notice can be posted to the Internet Service Provider's (ISP) nominated address.

Australian Hosted Website

For websites hosted in Australia a different process is applicable.

See Takedown Notice for Online Copyright Infringement.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a practising USA Attorney for legal advice specifically tailored to your needs & circumstances.

What is a Digital Millennium Copyright Act (DMCA) Counter-Notice?

The owner of the USA hosted website who you have alleged is infringing copyright by serving the Internet Service Provider (ISP) with a DMCA Takedown Notice may issue a DMCA Counter-Notice claiming there has been a mistake and they dispute that the material infringes your copyright.

The Internet Service Providers (ISP) must then restore, or enable access to, the copyright material on its system or network; unless you provide notice, within 10-14 business days of receiving the DMCA Counter-Notice, that you or your agent have commenced legal proceedings seeking a Court order to restrain the activity that is claimed to be infringing.

The form of the DMCA Counter-Notice is suggested by the DMCA statute, which can be found at the U.S. Copyright Office's official website: https://www.copyright.gov.

This means that you will need to issue legal proceedings if you want the material to be permanently removed.

It will then be up to the Court to determine whether the publishing of the material on the website is an infringement of copyright or whether there is a valid defence to the claim of infringement of copyright.

Important: If the website can prove that your DMCA Takedown Notice was unfounded then you may be liable for damages or other civil penalties.

Please also be aware that it is a Federal Crime to swear a false statement of good faith in a DMCA Takedown Notice (please refer to the minimum requirements above regarding making your statements under penalty of perjury).

Therefore, we strongly recommend you always have a USA Attorney review your DRAFT before you decide whether to proceed.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a practising USA Attorney for legal advice specifically tailored to your needs & circumstances.

Can we agree verbally or in writing between ourselves?

We trust each other and don't want to go through the additional paperwork/expense.

Can we sort it out and agree verbally or in writing just between the two of us?

In short, the answer is Yes.

However, doing so runs the real risk of a potential costly + lengthy legal dispute at some point in the future.

This is because whatever is agreed verbally or in writing between a couple (without first obtaining independent legal advice) is not binding or enforceable in Court.

Which is better: A Binding Financial Agreement or Court Orders?

The Binding Financial Agreement (BFA) has to be in writing and each party needs to have sought independent legal advice before signing for it to have any legal effect.

These agreements, which are commonly known as/referred to as a prenuptial agreement, can be challenged on many grounds such as being outdated due to change in the parties’ circumstances.

The Court Orders made are final and binding (other than via the usual Court Appeal process) which makes this the best option for the separated couple to make a "clean break" with as much certainty as possible.

How does the Court decide how to divide assets and debts to achieve a Just & Equitable outcome?

There is no set formula used by the Court to divide your property.

No one can tell you exactly what orders a judicial officer will make.

The decision is made after all the evidence is heard and the judicial officer decides what is just and equitable based on the unique facts of your case.

The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage
(see Sections 79(4)and 75(2)) or a de facto relationship (see Sections 90SM(4) and 90SF(3)).

The general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship, and are based on:

• working out what you've got and what you owe, that is your assets and debts and what they are worth;
  
  
• looking at the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings;
  
  
• looking at indirect financial contributions by each party such as gifts and inheritances from families;
  
  
• looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
  
  
• future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn.

The way your assets and debts will be shared between you will depend on the individual circumstances of your family.

Your settlement will probably be different from others you may have heard about.

Just & Equitable v. Bad Bargain

Q: If the Binding Financial Agreement (BFA) represents a "Bad Bargain" can it be set aside?

A: No

Court Orders are made in the discretion of the Court such that they are "Just & Equitable".

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Disclosure and exchange of correspondence^

Parties to a case have a duty to make timely, full and frank disclosure of all information relevant to the issues in dispute.

There may be serious consequences for failing to disclose, including punishment for contempt of Court.

The Court’s ‘Duty of Disclosure’ brochure provides more information.

In summary, parties should promptly exchange copies of documents in their possession or control relevant to an issue in the dispute before as well as after starting a case.

Examples of documents may include:

✅ A schedule of assets, income and liabilities

✅ A list of documents in the party’s possession or control that are relevant to the dispute, and

✅ A copy of any document required by the other party, identified by reference to the list of documents.

In particular, parties are encouraged to refer to the Financial Statement and Rules 4.15, 12.02, 12.05 and 13.04 as a guide to what information to provide and documents to exchange.

Rule 13.12 sets out documents that do not need to be produced.

These include documents where there is a claim for privilege from disclosure or documents that have already been disclosed and where there has been no change likely to affect the result of the case.

The documents that the Court would consider as appropriate to be exchanged include:

In a maintenance case

✅ The party’s taxation return and taxation assessment for the most recent financial year;

✅ The party’s bank records for the previous 12 months;

✅ The party receives wage or salary payments, the party’s three most recent pay slips;

✅ The party owns or controls a business, the business’s Business Activity Statements for the previous 12 months; and

✅ Any other document relevant to determining the income, expenses, assets, liabilities and financial resources of the party.

In a property settlement case

✅ The party’s three most recent taxation returns and assessments;

✅ Documents about any relevant superannuation interest, including;

➲ The completed Superannuation Information Form;

➲ For a self-managed superannuation fund, the trust deed and the last three financial statements;

➲ the value of the superannuation interest, including how the value has been calculated and any documents working out the value;

✅ For a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04;

➲ Financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years;

✅ For the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04;

➲ Any Business Activity Statements for the 12 months ending immediately before the first court date;

➲ For any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s constitution;

➲ For any trust, the trust deed;

➲ For any partnership, the partnership agreement, including amendments, and

✅ Unless the value is agreed, a market appraisal of any item of property in which a party has an interest.

Where a party is unable to produce a document for inspection, it is reasonable for the party to be required to provide written authority authorising a third party (for example, an accountant) to provide a copy of the document to the other party, where this is practicable.

Parties should agree to a reasonable place and time for the documents to be inspected and copied at the cost of the person requesting the copies.

Parties must not use a document disclosed by another party for any purpose other than to resolve or determine the dispute for which it was disclosed.

That is, in seeking the documents through the pre-action procedure, the party receiving them is considered by the Court to have given an undertaking that they will be used for the specific purposes of the case only.

Where there are disagreements about disclosure, it may be appropriate for an application to be filed with the Court.

FAMILY LAW RULES 2004 - RULE 13.04

Full and frank disclosure (emphasis added)

(1) A party to a financial case must make full and frank disclosure of the party's financial circumstances, including:

(a)  the party's earnings, including income that is paid or assigned to another party, person or legal entity;

(b)  any vested or contingent interest in property;

(c)  any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;

(d)  any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;

(e)  the party's other financial resources;

(f)  any trust:

(i)  of which the party is the appointor or trustee;

(ii)  of which the party, the party's child, spouse or de facto spouse is an eligible beneficiary as to capital or income;

(iii)  of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto spouse is a shareholder or director of the corporation;

(iv)  over which the party has any direct or indirect power or control;

(v)  of which the party has the direct or indirect power to remove or appoint a trustee;

(vi)  of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;

(vii)  of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or

(viii)  over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party's child, spouse or de facto spouse is a director or shareholder of the corporation;

(g)  any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:

(i)  in the 12 months immediately before the separation of the parties; or

(ii)  since the final separation of the parties; and

(h)  liabilities and contingent liabilities.

(2)  Paragraph (1)(g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.

(3)  In this rule:

"legal entity " means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity.

Note: The requirements in this rule are in addition to the requirements in rules 12.02 and 12.05 to exchange certain documents before a conference in a property case.

‍

Source: ^ Extracted from "Before you file - pre-action procedure for financial cases" (prescribed brochure)

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Key Terms used in the Grant of Probate or Letters of Administration in Australia

Administrator

➲ A person appointed by the Supreme Court to administer a deceased estate when the deceased has not left a Will, or if they have for some reason the nominated executor is unable to or does not wish to act.

Administrator cta

➲ When "cta" is appended to Administrator, an abbreviation of the Latin phrase cum testamento annexo is being added which translates to mean that the Grant of Administration / Letters of Administration is being made "with the Will annexed".  

This is an unusual situation as generally it is assumed that when an Administrator is appointed there is no Will.

For this to occur, the Will needs to be incomplete, such as is the case where:

❌ No Executor is named; or

❌ The appointed executor has since become incapacitated, or does not wish to act as executor.

When either of the above occur, an application may be made to the Probate Court to appoint someone else.

If the Probate Court approves the application, it grants what is called "Letters of Administration with the will annexed", sometimes written as "Letters of Administration cta’".

Affidavit

➲ An Affidavit is a sworn or affirmed written statement, that is made on oath by a person setting out the facts relevant to their case.

The person making the Affidavit (called a deponent) must swear or affirm that everything said in it is true before a person authorised by law to administer oaths. 

Making a false statement in an Affidavit may subject the deponent to perjury charges.

Affidavit in Support

➲ When an Affidavit is used to support an application to the Court.    

Affinity, Relationship of

➲ Related by marriage.

Annex, Annexe

➲ To attach, add or append.

Commorientes

➲ Latin term referring to when people die together at the same time, and it is uncertain as to who died first.

Consanguinity

➲ Latin term meaning all of the following: "shared blood" or a blood relationship, people who have descended from a common ancestor, the same blood line.  

Can be distinguished from a Relationship of affinity, which is being related to someone by marriage.

Deceased Estate

➲ All the property (both real estate + personal property) a person owns in their sole name when they die.  

The estate of a deceased person is what the deceased has left, whether by their Will or under the statutory rules on Intestacy (applied when there is no Will).

Deed of Family Arrangement

➲ An agreement (usually made in the form of a Deed) which sets out how property in the family is to be distributed.

Devolves, Devolution

➲ The passing of rights, property from one person to another on the occurrence of an event, for example death.

Dispensing Power

➲ The Probate Court has the power to dispense with the traditional formalities required by law to make a valid Will.  

This allows the Probate Court to exercise their discretion to Grant Probate for a document which supposedly expresses the deceased person’s testamentary intentions, but which for some reason they hadn’t signed, and/or witnessed, according to the traditional formalities required by law.

Executor de son tort

➲ Meaning a person who acted "as if" they were the legally appointed Executor/Administrator, when they were not.

The Latin term "de son tort" means "of his/her own wrong".

The person who does this is liable to account to the beneficiaries and creditors of the deceased estate for any losses caused by their actions.

Financial Statements

➲ Records of all financial transactions during the period of administering the deceased’s estate must be kept by the Executor/s.  

When the administration has been completed the Executor/s then provide each beneficiary with a copy of the financial statements.

Grant of Probate

➲ See Probate.

Originating Process

➲ Documents which are used to commence legal proceedings in a court.

Partial Intestacy

➲ When a Will does not effectively dispose of all of the deceased’s property, or the Will is ambiguously worded such that part of the estate is not capable of being dealt with effectively.

Probate

➲ A process by which the Will or a document alleged to be the Will of a deceased person is proven to be valid according to law.  

A Grant of Probate is an official document certified and issued by the Probate Court as evidence that the Court has recognised and confirmed the authority of the person/s named as Executor/s to go ahead and deal with the deceased estate according to the deceased’s Will, and distribute their assets and property, both real and personal.

Grant of Probate must normally occur before the Executor/s can obtain title to the property forming the deceased estate, that is before “calling in ” the deceased’s assets.

If there is no Will the deceased has died Intestate and in such circumstances an Administrator is appointed and instead of a Grant of Probate they are granted Letters of Administration / Administration.

Probate Court

➲ The Probate Court is a specialist division of the Supreme Court, in each state and territory.

Representation

➲ A term more commonly used to refer collectively to Grants of Probate or Administration.

Reseal of Probate

➲ If a deceased had assets in different states of Australia or in certain countries, namely Commonwealth countries where the Queen is the head of state, then it is generally possible to have a Grant of Probate issued by a Court in one jurisdiction recognised in another state or country.

This process of recognising the grant made in the other state or country is called resealing the grant.

NSW Reseal of Probate example:

Not all Grants from other countries can be resealed by the Supreme Court of NSW.

The Probate Court will only reseal Grants made in countries of the "Commonwealth Realm" where the Queen is, or was at the time of the grant, Head of State.

Such countries include the United Kingdom (England, Scotland, Wales and Northern Ireland), New Zealand, Papua New Guinea and Solomon Islands.

Recent grants from the following countries cannot be resealed: Malta, South Africa, Pakistan, India, Sri Lanka, Fiji, Hong Kong or The Republic of Ireland.

If a grant cannot be resealed then it may be necessary to apply for a new Grant of Probate in NSW.

Solemn Form

➲ Sometimes a Grant of Probate cannot be made because there is some issue or dispute about the Will.

Once the issue / dispute has been resolved by the Probate Court it may then issue a Grant of Probate in solemn form.  

‍The words "solemn form" indicate that Court proceedings have taken place and the dispute is now resolved.

Appointor / Principal

➲ Is the term used in modern Trust Deeds to describe the person who has the power to appoint and remove the trustee.

Accordingly, the Appointor assumes indirect control over the whole operation of the Trust.

We generally recommend joint Appointors or at least a clear succession should the Appointor die.

If there is no nominated successor, the Appointor’s legal personal representative succeeds as the Appointor.

Where an Appointor is deemed to have lost legal capacity (e.g. which might be a possibility if the Appointor suffers from a mental condition such as dementia) and where an Enduring Power of Attorney is in place, the Attorney succeeds as the Appointor.

ATF

➲ ‘As trustee for’.

Beneficiary

➲ Any ascertainable person or group of people can be the beneficiary of a private express trust.

Person includes a legal person (also called a legal entity) such as a corporation, unincorporated association, etc.

Charitable trust

➲ A trust is a charitable trust when it is established for charitable purposes (objects).

“A purpose trust that is directed to exclusively charitable purposes and that exhibits public benefit".

A Charitable Trust may be quite general (for example for the relief of poverty) or highly specific (for example the care of the aged in a specific geographic region).

Charitable Trusts need not have any vesting date, and may exist in perpetuity.

Constructive Trust

➲ Not really a trust.

It is a remedy decreed by the Court to prevent unjust enrichment.

The trustee will have only 1 duty: to transfer the property to the intended beneficiary as determined by the Court.

It is a means to disgorge a wrongdoer of ill-gotten gains.

Corpus of a Trust

➲ Property of the trust. Any presently existing interest in property that can be transferred can be the corpus of a trust.

Cy Pres

➲ Pronounced Sigh Pray. It is a phrase adopted from the French meaning, “as near as possible” to the original intention.

Family / Discretionary Trust

➲ In Australia, a Discretionary Trust is a common structure to run a business out of because it offers many taxation advantages.

For Example: The flexibility to distribute profit to different beneficiaries (including streaming of dividends to a particular individual/s), the ability to access significant capital gains concessions and stream those capital gains to a particular beneficiary.

Inter Vivos

➲ Between living persons, someone transfers or gives property to another person while both are alive, such as a parent giving money or other property to their children.  

Trusts established during a person’s lifetime are often referred to as being an Inter-Vivos Trust.

Object

➲ A legal term used in trusts law.  

An object of a trust is a beneficiary of that trust.

In Wills where a gift is made to a particular group or class of people, an object means someone from that group.  

For Example: The group might be described in a Will as ‘my children’ or ‘my nieces and nephews’.

Private Express Trust

➲ A fiduciary relationship with respect to property whereby one person, the trustee, holds legal title for the benefit of another, the beneficiary, and which arises out of a manifestation of intent to create it for a legal purpose.

Resulting Trust

➲ A resulting trust is an implied in fact trust and is based upon the presumed intent of the parties.

If a resulting trust is decreed by the court, the resulting trustee will transfer the property to the settlor if the settlor is alive, and if not, to the settlor’s estate, i.e. to the residuary devisees if any, and if none, to the intestate takers (the heirs).

Rule Against Perpetuities

➲ At common law, the modern rule against perpetuities, is that no interest is good unless it must vest, if at all, no later than 21 years after the death of a life in being who is alive at the creation of the interest.

At common law, an interest is void from the outset if it may possibly vest outside the perpetuity period, such question being determined having regard to circumstances existing at the commencement of the period.

It is not possible at common law, to ‘wait and see’ whether the rule is in fact offended by events as they actually turn out.

The common law rule against perpetuities has been modified by legislation in all Australian jurisdictions, except South Australia where the rule has been abolished.

The most significant reforms to the common law in all jurisdictions where legislative intervention has occurred has been the introduction of a ‘wait and see’ provision, and statutory limits preventing any trust from existing for more than 80 years.

Any trust that purports or attempts to last for a longer period of time is void.

The exception to this rule is for Charitable Trusts.

Secret Trust

➲ Generally speaking, a secret trust arises when a testator wishes to keep secret an object within the Will, such as bestowing a benefit to a political cause, or granting a trust to relatives that may be unknown to the wider family.

Secret trusts fall within two general categories: fully-secret and half-secret trusts.

The basic difference between a fully-secret and half-secret trust, is that there is no indication in the terms of the Will that a fully-secret trust exists.

Whereas, a half-secret trust will be mentioned in the Will, but may leave out the identity of the beneficiary, as well as the gift to be bestowed.

Settlor

➲ The person who initiates the formation of the trust by the provision of the Settled Sum (usually a nominal amount). Apart from providing the Settled Sum and executing the Trust Deed, the Settlor takes no further part in the Trust operations.

A Settlor will often be a family friend or a solicitor or an accountant who will not be a beneficiary of the trust.

Note: The settlor of a Discretionary Trust must be an independent person.

Special Disability Trust

➲ A trust which allows parents or other family members to leave assets in trust for an individual which can be used to fund ongoing care, medical expenses, accommodation, and some discretionary expenditure for that person into the future, without affecting their entitlement to a disability support pension.

Spendthrift Trust

➲ A trust where the beneficiary is unable to transfer his/her interest, either voluntarily or involuntarily. He/She cannot sell or give away his/her right to income or corpus, and his/her creditors cannot attached these rights.

Support Trust

➲ A trust where the trustee is required to use only so much of the income or principal as is necessary for the beneficiary's health, support, maintenance and education.

Trustee

➲ A person (or company) appointed to hold property on trust for others, the beneficiaries subject to the terms set out in a will, as a testamentary trust. Executors are often appointed to act as trustees where a trustee role is required following administration of the estate.  However professional advisers or their firms may also be appointed depending on the circumstances.

Testamentary Trust

➲ A trust created by a Will, which only comes into being after the testator passes away.

Testamentary Charitable Trust

➲ A Charitable Trust created by a Will, which only comes into being after the testator passes away.

Testamentary Pet Trust

➲ A trust for the care and support of the testator's pets created by a Will, which only comes into being after the testator passes away.

Totten Trust

➲ Actually a Totten Bank Account [POD]* not common in Australia (used o/seas)

Trust Deed

➲ A legal document that sets out the rules for establishing and operating your trust.

Unit Trust

➲ The trust deed functions in much the same way as the constitution of a company, and units in the unit trust operate in a similar way to shares in a company.

Vesting Day

➲ The Vesting Day is generally 80 years (except in South Australia) from the date of commencement of the Trust.

That is because, as a matter of law, the Trust must terminate or ‘vest’ at a date not later than 80 years after its commencement.

A provision maybe included in the Trust, which enables the Trustee to nominate an earlier Vesting Day.

The parties to any Binding Financial Agreement or Family Law Court Proceedings must make full and frank disclosure of their financial circumstances.

Binding Financial Agreements

Consequences of Non-Disclosure

If a party can show that the other party to the Binding Financial Agreement has not provided full and frank disclosure of their true financial position, the Binding Financial Agreement may not be enforceable.

At the very minimum the Binding Financial Agreement would be subject to a valid legal challenge in Court where the non-disclosing party would bear the onus of proof of showing the the non-disclosure was not material.

This is especially the case where the Binding Financial Agreement (in light of the true financial position of the parties) is not "fair + equitable".

Family Law Court Proceedings

Consequences of Non-Disclosure

If the non-disclosure is clear to the Court, or disclosure is made in a confusing manner with little or no effort made to respond to requests for clarification: the most likely result will be the Court making Property Orders unfavourable to the non-disclosing / non-cooperating par­ty.

If the non-disclosure is discovered after Court pro­ceed­ings have completed there may be valid grounds for the Court to set aside the original Prop­er­ty Orders and make new orders to replace them based on the true finan­cial position.

The Court may use its discretion to order that all or part of the legal costs incurred by the innocent party in both the original and subsequent Court proceedings are payable by the non-disclosing party, and in some cases the Court may order the non-disclosing party in contempt of Court.

Delay caused by Late Disclosure

In the marriage of Briese, Smithers J. at para. [2] described the ongoing duty of full and frank disclosure^ [emphasis added] in Family Law Court Proceedings as:

"… A positive obligation to set out at an early stage their financial position in a clear and comprehensive manner. The Regulations, and now the Rules, are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty. They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure.

The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance.

Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding."

Consequences of Late Disclosure / Evasive Conduct

In the marriage of Briese, Smithers J. at para. [6] provided an example of the cost consequences in Family Law Court Proceedings where a party eventually provides full and frank disclosure, but only after unduly prolonging the proceedings + being evasive as to their financial circumstances [emphasis added]:

In the unreported decision of Nygh J. in Marinko (29 October 1982) the learned Judge made an order for costs against the husband, in part because of his conduct of the proceedings.

He found that the husband had unduly prolonged the proceedings and further that he had been evasive as to his financial circumstances.

At p. 3 of his reasons for decision his Honour said:

"It is quite clear that under reg. 97, there is an obligation on the parties to make a full and fair disclosure of all their financial assets; it is also expected of the parties that they shall co-operate with the conduct of the proceedings in order to bring them to an early and prompt conclusion with a minimum of expense.

This obligation is incumbent upon the Court under sec. 97(3) of the Act, and by inference, it lies upon the parties and their legal advisers to co-operate in that goal.

It is, therefore, not an answer to say that the wife did not succeed fully, or that the evidence which she finally obtained out of the husband was not all helpful, or essential to her case.''

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

The Family Court of Australia & the Federal Circuit Court recently merged

The new merged Court is called the Federal Circuit & Family Court of Australia.

Family Court of Western Australia

Western Australia is unique amongst Australian states in being the only state with its own Family Court.

This may change in the future as we understand there are discussions regarding a future merger with the Family Court of Australia.

If your matter has a nexus (i.e., connection) to Western Australia, then you may make an application to the Family Court of Western Australia.

If you are unsure whether you matter is connected to Western Australia, please contact our legal team to seek legal advice specific to your circumstances.

To provide some general background to what constitutes connection the threshold tests differ for parenting and financial matters.

Parenting Matters

The test for the required connection Western Australia differs depending upon the specific orders being sought.

Financial Matters

The threshold test is specified in s. 205X of the Family Court Act 1997 (WA):

205X. People to whom this Part applies — connection with WA

Despite section 36(5), before making an order under this Division a court must be satisfied —

(a) that one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and

(b) that —

(i) both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or

(ii) substantial contributions of the kind referred to in section 205ZG(4)(a), (b) or (c) have been made in the State by the applicant.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

The Cth Courts Portal / Commonweath Courts Portal

The Cth Courts Portal / Commonwealth Courts Portal is an initiative of the Federal Court of Australia and Federal Circuit & Family Court of Australia.

It provides online services for registered litigants (you) +/or your lawyer enabling you/your lawyer to eFile/eLodge + access case documents & information incl. Court Dates.

How do I?

How do I eFile in the Cth Courts Portal / Commonwealth Courts Portal?

How do I navigate through the Cth Courts Portal / Commonwealth Courts Portal?

How do I register for the Cth Courts Portal / Commonwealth Courts Portal?

Federal Law Search

The Cth Courts Portal / Commonwealth Courts Portal also includes Federal Law Search which provides selected information on cases filed in the:

• Federal Court of Australia; and

• General Federal Law jurisdiction of the Federal Circuit Court of Australia.

The information is real time and includes all cases that have commenced since 1 January 1984.

As the database is continually updated, the results of a search may vary from time to time as new information is entered.

Matters where a pseudonym has been assigned to a party are not searchable in Federal Law Search.

Source: Cth Courts Portal / Commonwealth Courts Portal.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What are the Ongoing Annual ASIC Fees for ASIC registered Foreign Corporations?

The prescribed annual ASIC return fee for a registered foreign company in Australia is currently AUD $1,433 (as at April 2024).

What are the Compliance Obligations for ASIC registered Foreign Corporations?

Notified Foreign Passport Fund Operations:

• If your foreign company operates a notified foreign passport fund, ongoing obligations apply, including reporting responsibilities to ASIC. Refer to Regulatory Guide 138 Foreign passport funds (RG 138) for more information.‍

Maintain a Registered Office:

• A registered office in Australia must be maintained, open every business day from 10 am to 12 pm and 2 pm to 4 pm. Notify ASIC if alternative hours apply. A company representative must be present during office hours.

Display Company Name and Details:

• Display the company name outside all public offices. Additional displays required for origin, 'registered office', and member liability notice if applicable.

Display ARBN Correctly:

• Display company name and ARBN on all public documents, including negotiable instruments. Notified foreign passport fund operators must include the Notified Foreign Passport Fund Registration Number (NFPFRN) and unique ASIC-assigned numbers.‍

Use of Abbreviations and Documentation Standards:

• Allowed abbreviations include 'Aust.', 'Regd.', 'No.', 'ARBN', and 'NFPFRN'. Meet paper form requirements for size, quality, text color, and margins.

Engage a Local Agent:

• A registered foreign company must have a local agent responsible for meeting obligations and may appoint multiple agents. Ensure a smooth transition if the agent changes by proper documentation.

Establish Branch Register of Members:

• Registered foreign companies with share capital may need to establish a branch register in Australia upon request by an Australian resident member. Compliance with member requests for registering or transferring shares is mandatory.

Lodge Documents with ASIC:

• Submit financial statements annually, ensuring compliance with reporting requirements. Exemptions and alternative forms are available based on specific circumstances.

Annual Return Filing:

• Lodge an annual return within one month after the annual general meeting. Compliance requirements detailed in Form 406, except for entities relying on specific relief provisions.

Late Fees and Compliance:

• Ensure timely lodgment of required documents to avoid late fees. Refer to INFO 30 for fee details.

Updating Company Details:

• Notify ASIC promptly of any changes in company, director, or local agent details. Utilize Form 406 for notifications unless specified otherwise in the table of changes.

Further Reading:

Detailed guidance on registering a foreign company with ASIC is available on the ASIC website: ASIC Foreign Companies Guidance.

Download the ASIC Regulatory Guide 58 for more information: ASIC Regulatory Guide 58.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What are the ASIC fees for registering a Foreign Company in Australia?

The prescribed ASIC fee for registering a foreign company in Australia is currently AUD $576 (as at April 2024).

As registration fees can vary, you should check the latest fees when completing the ASIC Registration Form 402 on the ASIC website.

Once registered your Foreign Company will be assigned an ARBN, that is, an Australian Registered Business Number.

Required Supporting Documents

A high proportion of foreign company registration applications are delayed or refused because they don’t contain the correct documentation.

You MUST ensure that all your supporting documents meet the requirements.

If any document for lodgement is not in English, you must provide a reasonable translation into English.

When you lodge Form 402, you MUST also include a:

⚖️ Current certified copy of the entity’s certificate of incorporation or registration;

⚖️ Current certified copy of the entity’s constitution;

⚖️ Memorandum of appointment of the local agent or power of attorney in favour of the local agent; and

⚖️ Memorandum stating the powers of certain directors.

Further Reading:

Detailed guidance on registering a foreign company with ASIC is available on the ASIC website: ASIC Foreign Companies Guidance.

Download the ASIC Regulatory Guide 58 for more information: ASIC Regulatory Guide 58.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Strategy Canvas is a central diagnostic tool and an action framework for building a compelling blue ocean strategy.

It graphically captures, in one simple picture, the current strategic landscape and the future prospects for an organization.

The strategy canvas is developed by Chan Kim and Renée Mauborgne.

The strategy canvas is a one-page visual analytic that depicts the way an organization configures its offering to buyers in relation to those of its competitors.

It crisply communicates the four key elements of strategy:

1️⃣ The factors of competition;

2️⃣ The offering level buyers receive across these factors; and

3️⃣ Your own; and

4️⃣ Your competitors’ strategic profiles and cost structures.

And it tells a story: It allows you to see – and understand – where you and your competitors are currently investing; the product, service, and delivery factors the industry is competing on; and what customers receive from existing competitive offerings.

‍

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Foreign Persons & IRS Employer Identification Numbers (EIN)

Foreign entities that are:

1️⃣ Not individuals (i.e., Foreign Corporations, etc.); and

2️⃣ That are required to have a federal Employer Identification Number (EIN) in order to claim an exemption from withholding because of a tax treaty (claimed on Form W-8BEN-E) ...

Need to submit Form SS-4 Application for Employer Identification Number to the Internal Revenue Service in order to apply for such an EIN.

Special Instructions for Foreign Entities (Seeking Tax Treaty Exemption) ➲ No Requirement to File a U.S. Income Tax Return

Those foreign entities filing Form SS-4 for the purpose of obtaining an EIN in order to claim a tax treaty exemption and which otherwise have no requirements to file a U.S. income tax return, employment tax return, or excise tax return, should comply with these "Special Instructions" when filling out Form SS-4.

When completing line 7b of Form SS-4, the applicant should write "N/A" in the block asking for an SSN or ITIN, unless the applicant already has an SSN or ITIN.

When answering question 10 on Form SS-4, the applicant should check the "other" block and write or type in immediately after it one of the following phrases as most appropriate:

"For W-8BEN Purposes Only"
"For Tax Treaty Purposes Only"
"Required under Reg. 1.1441-1(e)(4)(viii)"
"897(i) Election"

If questions 11 through 17 on Form SS-4 do not apply to the applicant because they have no U.S. tax return filing requirement, such questions should be annotated "N/A".

A foreign entity that completes Form SS-4 in the manner described above should be entered into IRS records as not having a filing requirement for any U.S. tax returns.

Immediate Response to the IRS Required ➲ No Requirement to File a U.S. Income Tax Return

However, if the foreign entity receives a letter from the IRS soliciting the filing of a U.S. tax return.

The foreign entity should respond to the letter immediately by stating that it has no requirement to file any U.S. tax returns.

Failure to respond to the IRS letter may result in a procedural assessment of tax by the IRS against the foreign entity.

If the foreign entity later becomes liable to file a U.S. tax return, the foreign entity should not apply for a new EIN, but should instead use the EIN it was first issued on all U.S. tax returns filed thereafter.

International EIN Applicants

If you have no principal place of business, office or agency, or legal residence in the United States or U.S. Territories, you're considered an international applicant.

This is a free service offered by the Internal Revenue Service and you can get your EIN immediately.

You can only apply for an EIN as follows:

By Telephone - If you're an international applicant, you may call 267-941-1099 (not a toll-free number), 6 a.m. to 11 p.m. Eastern time, Monday through Friday, to obtain an EIN.

You MUST be authorized to receive the EIN and answer questions concerning the Form SS-4.

When applying by telephone, it's helpful to complete the Form SS-4 before contacting the IRS.

An IRS representative will use the information from the Form SS-4 to establish your account and assign you an EIN.

By Fax or Mail - You can apply by fax or mail as indicated above.

References/Related Topics

• International Taxpayers
• Taxation of Nonresident Aliens

Source: IRS ➲ Taxpayer Identification Numbers (TIN)‍

Further Reading:

Do you need an EIN?

How to Apply for an EIN

9 Benefits of Getting an EIN (Even If YOU Don't Have To)

Employer Identification Number ➲ Understanding Your EIN

Do you need a New EIN?

How to complete the W-8BEN-E Form for Australian Companies

‍Credits:

This FAQ was created by James D. Ford Esq., GAICD CIPP/US CC | Attorney-at-Law, Blue Ocean Law Group℠.

State of California Bar Number: 346590

Is IRS Form 1099-MISC, 1099-NEC or some other variant of Form 1099 required to be filed?

For each person to whom you have paid the following during the year (Form 1099-MISC):

1️⃣ At least $600 in Rents (Box 1);

2️⃣ At least $10 in Royalties (Box 2);

3️⃣ At least $600 Other income (Box 3), including prizes and awards;

4️⃣ Any amount of Federal income tax withheld (Box 4); including backup withholding

5️⃣ Any fishing boat proceeds (Box 5);

6️⃣ At least $600 Medical and health care services (Box 6);

7️⃣ Direct Sales Totalling $5,000 or more (Box 7);

8️⃣ At least $10 in Substitute payments in lieu of dividends or interest (Box 8);

9️⃣ Crop insurance proceeds of $600 or more (Box 9);

🔟 Gross proceeds of $600 or more paid to an attorney, for example in a settlement agreement (Box 10, but payments to attorneys for services are reported on Form 1099-NEC);

⚖️ Fish purchased for resale (Box 11);

⚖️ Section 409A deferrals (Box 12);

⚖️ Excess golden parachute payments (Box 13); or

⚖️ Nonqualified deferred compensation (Box 14).

Note: It is important that you place the payment in the proper box on the form.

Refer to the instructions for more information.

Independent Contractor ➲ Federal Compliance Obligations

Any business or government entity (including nonprofit organisations) making payments for service performed by an Independent Contractor (who is not a Corporation# or an International Contractor^) is most likely required (unless an exception applies) by 31 Jan each year to:

1️⃣ File IRS Form 1099-NEC; AND 

2️⃣ Furnish a statement to the Recipient.

When is IRS Form 1099-NEC (Non-Employee Compensation) required to be filed?

If the following 4 conditions are met, you MUST generally report a payment as NEC:

1️⃣ You made the payment to someone who is not your employee (ie., an Independent Contractor excluding International Contractors^);

2️⃣ You made the payment for services in the course of your trade or business (including government agencies and nonprofit organizations);

3️⃣ You made the payment to an individual, partnership, estate, or, in some cases, a Corporation#; and

4️⃣ You made payments to the payee of at least $600 during the year.

For each person to whom you have paid at least $600 for the following during the year (Form 1099-NEC):

✅ Services performed by someone who is not your employee (including parts and materials); or

✅ Payments to an attorney (including law firms or other providers of legal services).

Notes:

 You MUST File Form 1099-NEC or Form 1099-MISC to report sales totaling $5,000 or more of consumer products to a person on a buy-sell, a deposit-commission, or other commission basis for resale.

 You MUST also file Form 1099-NEC for each person from whom you withheld any Federal Income Tax (Box 4 of Form 1099-NEC) under the backup withholding rules regardless of the amount of the payment.

Refer to the instructions for more information.

Other Form 1099 Categories

⚖️ Interest on a business debt to someone (excluding interest on an obligation issued by an individual) (Form 1099-INT);

⚖️ Dividends or other distributions to a company shareholder (Form 1099-DIV);

⚖️ Distribution from a retirement or profit plan or from an IRA or insurance contract (Form 1099-R); or

⚖️ Payments to merchants or other entities in settlement of reportable payment transactions, that is, any payment card or third party network transaction (Form 1099-K).

Received a Payment and Other Reporting Situations

If, as part of your trade or business, you received any of the following types of payments, use the link to be directed to information on filing the appropriate information return.

⚖️ Payment of mortgage interest (including points) or reimbursements of overpaid interest from individuals (Form 1098)

⚖️ Sale or exchange of real estate, for example the person responsible for closing the transaction (Form 1099-S)

⚖️ You are a broker and you sold a covered security belonging to your customer (Form 1099-B)

⚖️ You are an issuer of a security taking a specified corporate action that affects the cost basis of the securities held by others (Form 8937)

⚖️ You released someone from paying a debt secured by property or someone abandoned property that was subject to the debt (Form 1099-A) or otherwise forgave their debt to you (Form 1099-C)

⚖️ You made direct sales of at least $5,000 of consumer products to a buyer for resale anywhere other than a permanent retail establishment (Form 1099-MISC)

10 or More IRS Information Returns ➲ E-filing Now Required!

Starting tax year 2023, if you have 10 or more information returns, you MUST file them electronically.

This includes Forms W-2, e-filed with the Social Security Administration.

Find details on the final e-file regulations and requirements for Forms W-2.

To e-file, apply now for a Transmitter Control Code (TCC).

It may take up to 45 days for processing.

You can e-file any Form 1099 for tax year 2022 and later with the Information Returns Intake System (IRIS).

The system also lets you file corrections and request automatic extensions for Forms 1099.

For system availability, check IRIS status.

There are 2 ways to e-file with IRIS.

Source: E-file Forms 1099 with IRIS

Resolving Irregularities

If you are a recipient or payee of an incorrect Form 1099-MISC contact the payor.

If you cannot get this form corrected, attach an explanation to your tax return and report your income correctly.

If you are a recipient or payee expecting a Form 1099-MISC and have not received one, contact the payor.

Refer to the instructions for more information.

Not Required to File 1099 Information Returns

You are not required to file information return(s) if any of the following situations apply:

⚖️ You are not engaged in a trade or business.

⚖️ You are engaged in a trade or business; and

❌ The payment was made to another business that is incorporated, but was not for medical or legal services;

❌ The sum of all payments made to the person or unincorporated business is less than $600 in one tax year; or

❌ ^ The payment was made to an International Contractor (not a US-Citizen) performing services outside the U.S.

Source: IRS ➲ Am I Required to File a Form 1099 or Other Information Return?‍

‍Credits:

This FAQ was created by James D. Ford Esq., GAICD CIPP/US CC | Attorney-at-Law, Blue Ocean Law Group℠.

State of California Bar Number: 346590

1️⃣ What are Replaceable Rules?

Replaceable rules are in the Corporations Act and are a basic set of rules for managing your company.

If a company doesn't want to have a Constitution, replaceable rules will apply by default instead.

It is also possible for a company to be governed by a combination of a Constitution supplemented by the replaceable rules.

They can be an easy way for proprietary companies to manage their corporate governance.

The below FAQ assume that a company does not have a Constitution, and the replaceable rules apply by default.

2️⃣ Do Replaceable Rules apply to all Proprietary Companies?

Replaceable rules do not apply to a proprietary company if the same person is the sole Director and the sole Shareholder, or if the proprietary company adopts a Constitution to vary, displace or replace the Replaceable Rules.

3️⃣ Where can I find the Replaceable Rule provisions outlined in the Corporations Act 2001?

The Replaceable Rule provisions can change, so you should always refer to a current copy of the Corporations Act at legislation.gov.

4️⃣ Can a Director of a Proprietary Company Vote on Matters in which they have a Material Personal Interest?

Yes, a Director can vote on matters related to their interest if they disclose the nature and extent of the interest and its relation to the affairs of the company at a meeting of the Directors, or if the interest does not need to be disclosed under section 191 of the Corporations Act.

5️⃣ How are Directors Appointed in a Company?

A company may appoint a person as a Director by resolution passed in a general meeting.

The Directors of a company may also appoint a person as a Director.

6️⃣ Can a Company appoint a Managing Director?

Yes, the Directors of a company may appoint one or more of themselves to the office of Managing Director for the period and on the terms they see fit.

7️⃣ How is a Director's Remuneration Determined?

The Directors of a company are to be paid the remuneration that the company determines by resolution.

The company may also pay the Directors' travelling and other expenses incurred in attending meetings and in conjunction with the company's business.

8️⃣ How can a Director Resign from a Company?

A Director of a company may resign by giving a written notice of resignation to the company at its registered office.

9️⃣ How are Meetings of Members (a.k.a Shareholders) Called and Chaired?

A Director may call a meeting of the company's Members (a.k.a. Shareholders).

The Directors may elect an individual to chair meetings of the company's Members.

🔟 How many Votes does a Member have at a Meeting of Members?

Subject to any rights or restrictions attached to any class of shares, at a meeting of Members of a company with a Share Capital, each Member has one vote on a show of hands and one vote for each share they hold on a poll.

⏸️ How are shares transferred in a company?

A person transferring shares remains the holder of the shares until the transfer is registered and the name of the person to whom they are being transferred is entered in the Register of Members in respect of the shares.

The Directors of a proprietary company may refuse to register a transfer of shares in the company for any reason.

Further reading: ASIC Guide on Replaceable Rules

Credits:

This FAQ was written by Titan Lawyer [AI] then reviewed with minor changes by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

⚖️ Shareholder Liability

Bedrock Principle: Shareholders have limited liability [except in cases where the Court permits piercing of the Corporate Veil (PCV) which only occurs in closely-held Corporations.

⚖️ Piercing or Lifting the Corporate Veil

Generally, a corporate shareholder is not liable for the debts of a corporation, except when the court pierces or lifts the corporate veil and disregards the corporate entity, thus holding shareholders personally liable as justice requires.

It is easier to find liability in closely held corporations (those with few shareholders that make the decisions - that is, active shareholders).

The veil can be pierced for the following reasons:

1️⃣ Alter ego: Where the shareholders fail to treat the corporation as a separate entity, but more like an alter ego where corporate formalities are ignored and/or personal funds are commingled;

2️⃣ Undercapitalization: Where the shareholders’ monetary investment at the time of formation (and/or insurance coverage) is insufficient to cover foreseeable liabilities; some courts in close corporations look at future debts if foreseeable;

3️⃣ Fraud: Where a corporation is formed to commit fraud or as a mechanism for the shareholders to hide behind to avoid existing obligations; or

4️⃣ Estoppel: Where a shareholder represents that he will be personally liable for corporate debts.

The effect of piercing the corporate veil is that active shareholders will have personal joint + several liability.

💡 Issue-spotting tip: Where piercing or lifting the corporate veil is at issue, the facts often will also raise the issue of promoter liability for pre-incorporation contracts and breaches of fiduciary duties by directors.

This issue often arises in situations where there are few shareholders and courts are more likely to pierce the corporate veil for tortious acts and not for contract issues.

💡 Unlike a contract claimant, a tort victim did not voluntarily choose to transact with the Corporation and did not knowingly assume the risk of limited liability.

✅ Where either de facto Corporation or Corporation by Estoppel are indicated by the facts this may create a defence [Bail promoter out of a position of liability] for the promoter to avoid personal liability.

These 2 doctrines have been abolished in many states, but if they are available here is how they would work.

Where is the company incorporated or formed?

The “home" state where the corporation is incorporated as a domestic corporation determines which states laws apply to the internal affairs of the Corporation.

California is more liberal in allowing the corporate veil to be pierced than say Nevada where it is more difficult.

Totality of Circumstances

Factors that a court may consider when determining whether or not to pierce or lift the corporate veil include the following:

⚖️ Absence or inaccuracy of corporate records;

⚖️ Concealment or misrepresentation of members;

⚖️ Failure to maintain arm's length relationships with related entities;

⚖️ Failure to observe corporate formalities in terms of behavior and documentation;

⚖️ Intermingling of assets of the corporation and of the shareholder;

⚖️ Manipulation of assets or liabilities to concentrate the assets or liabilities;

⚖️ Non-functioning corporate officers and/or directors;

⚖️ Significant undercapitalization (or under insurance) of the business entity (capitalization + insurance requirements vary based on industry, location, and specific company circumstances);

⚖️ Siphoning of corporate funds by the dominant shareholder(s);

⚖️ Treatment by an individual of the assets of corporation as his/her own;

⚖️ Was the corporation being used as a "façade" for dominant shareholder(s) personal dealings; alter ego theory;

Important: Not all of these factors need to be met in order for the court to pierce the corporate veil.

Further, some courts might find that one factor is so compelling in a particular case that it will find the shareholders personally liable.

For example: many large corporations do not pay dividends, without any suggestion of corporate impropriety, but particularly for a small or close corporation the failure to pay dividends may suggest financial impropriety.

Example is where a parent Corporation forms a subsidiary to avoid its own obligations. The Court may allow the piercing of the Corporate Veil, so the plaintiff may sue the parent Corporation (go after the parent Corporation's assets).

⚖️ Deep Rock Doctrine

When a corporation is deemed undercapitalized or insolvent, third-party or outside creditors may be paid off before the claim of a shareholder and esp. a shareholder with a controlling interest who makes a loan to his or her own corporation, thus subordinating the shareholder claims.

Credits:

This FAQ was prepared by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

⚖️ Pre-incorporation acts by a Promoter

Promoters are persons acting on behalf of a Corporation that has not yet formed.

Prior to incorporation it is common for a promoter to raise capital and contract for a location, business materials, equipment, etc.

Liability for Promoter Contracts: Promoters are personally liable for pre-incorporation contracts until:

✅ There has been a novation (legal term that means legally effective substitution) replacing the promoter's liability with that of the Corporation; or

✅ There is an agreement between the parties that expressly states that the promoter is not liable.

Right of Reimbursement: The promoter may have a right to reimbursement based on quasi-contract for the value of the benefit received by the Corporation, or on the implied adoption of the contract.

A Corporation is not generally liable for, or bound to, pre-incorporation contracts except where the Corporation expressly:

✅ Adopts the contract; or

✅ Accepts the benefits of the contract.

Note: The promoter is also still liable unless there has been a novation (that is a legally effective substitution) or express agreement between the parties that the promoters will not be liable.

Promoter Duties: A promoter has a fiduciary relationship with the Corporation requiring good faith.

Promoters cannot make a secret profit on their dealings with the Corporation.

Credits:

This FAQ was prepared by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

⚖️ Rights of Shareholders

⚖️ Meetings

Meetings are typically where Shareholders convene + vote on corporate management issues.

General Meetings or annual meetings occur once a year and are where most Shareholder voting occurs (10-60 days notice required).

If none held within 15 months, a Shareholder can petition the Court to order one.

Special Meetings can be called by the Board, or the President, or the holders of at least 10% of the voting shares, or anyone else authorised by the by-laws.

The special meeting is held upon reasonable notice of the time, place and purpose to be discussed (10-60 days' notice required + purpose).

⚖️ Voting

Right to Vote: The right to vote attaches to the type of stock held by the Shareholder.

A Corporation can have 2 types of stock: common + preferred.

If the articles do not specify voting rights, both classes of stock may vote.

Usually each outstanding share is entitled to 1 vote.

‍Voting: Generally, Shareholders only have indirect corporate power through the right to vote to elect or remove members of the board and approve fundamental changes in the corporate structure, such as mergers, dissolutions, etc.

Who Votes?: General rule is the "record Shareholder" as of the"record date" has the right to vote.

Exceptions: Corporation re-acquires shares (which become treasury stock) before the record date ➲ The Corporation does not vote on this stock.

➲ Shareholder dies after the record date. Shareholder's executor can vote the stock.

Voting by proxy: A Shareholder may vote in person or by proxy (valid for 11 months unless the proxy says otherwise).

A proxy is a signed writing (can be electronic) authorizing another to cast a vote on behalf of the Shareholder.

A revocable proxy is an agency relationship between the shareholder and the proxy.

An irrevocable proxy can only occur when the proxy is coupled with some interest of the proxyholder (other than voting).

✅ The irrevocable proxy must be so labeled.

✅ The proxyholder's interest can relate to some other interest in the shares (e.g., a creditor or prospective purchaser under an option contract or actual purchaser after the record date) or an interest in the Corporation (e.g., performance of services or granting credit in exchange for proxy rights).

💡 Note: If there is no coupled interest, then a proxy clearly labelled as irrevocable, is actually still revocable.

Quorum: For an action to pass there must be a quorum, which is a majority of outstanding shares represented (in person or by proxy) at the meeting. Quorum is based on the number of shares, not the number of shareholders.

Majority Vote: If a quorum is present, a majority of votes cast validates the proposed Shareholder action.

‍Except votes regarding a fundamental change require a majority vote of all outstanding shares to validate the proposed action (A higher standard),.

Vote calculation: 2 methods are employed:

1️⃣ Straight counting: Each Shareholder casts one vote per share held.

Therefore a Shareholder with more than 50% of the shares controls the vote.

2️⃣ Cumulative voting for directors: Allows a Shareholder to multiply the numbers of shares held by the number of Directors to be elected and then cast all votes for one or more Directors.

💡 Cumulative voting is the law for all Corporations in California that are not publicly traded (there is no opt-out provision).

The rationale behind cumulative voting is that the process translates into more proportional representation of the Shareholders on the Board of Directors, giving minority Shareholders the opportunity to exert influence on management through the election of Directors who support their interests and priorities.

Unanimous written consent: Shareholders may also take action with unanimous written consent from all Shareholders.

⚖️ Inspection of Company Records

Inspection: A Shareholder has a right to inspect the corporate books (articles, resolutions, shareholder meeting minutes, etc.) upon:

✅ A showing of a proper purpose; with

✅ 5 days' written notice.

As to accounting or shareholder records or board minutes, the demand must be:

✅ Made in good faith and describe with reasonable particularity the purpose for the inspection, and the records must be directly connected to the stated purpose.

⚖️ DIvidends

Dividends: Dividends are the discretionary (at the Board's discretion) distribution of cash, property or stock that a Shareholder may receive from a Corporation.

❌ A distribution is not permitted if it would lead to insolvency or is not allowed in the articles.

Types of dividend distributions:

1️⃣ Preferred with dividend preference: Paid first to preferred with dividend preference as to stated amount, then remaining amount is paid to common stock;

2️⃣ Preferred + Participating: Paid first to preferred + participating as indicated in preferred amount, then remaining is paid to common stock which includes the preferred + participating Shareholders.

So P+P are paid preferred, and then also participate in the common stock dividend distribution.

💰💰Double Dip!

3️⃣ Preferred and cumulative: Paid first to preferred and cumulative as indicated for number of years not paid in the past, then remaining paid to common stock.

4️⃣ Cumulative if earned: Dividends cumulative only if the Corporation's total earnings for the year are more than the total amount of preferred dividends that would need to be paid out for the year.

⚖️ Proper + Improper Distributions

Which funds can be used to pay Dividends?

➲ Traditional view

1️⃣ Earned Surplus [Earnings - Losses - Distributions Previously Paid] Ok to be used for Dividends.

2️⃣ Stated Capital [Generated by issuing stock at par. value]. Never to be used for distributions. Policy: Keep in hand to pay creditors.

3️⃣ Capital Surplus [Generated by issuing any stock at a premium to par. value]. Ok to be be used for Dividends, if you inform the Shareholders.

On a no-par issuance, the Board allocates between stated and capital surplus.

➲ Modern view does not look at the funds.

It says a Corporation cannot make a distribution if it is insolvent or if the distribution would render it insolvent.

Insolvent means either:

❌ The Corporation is unable ti pay its debts as they come due; or

❌ Total assets are less than total liabilities (and liabilities include preferential liquidation rights).

⚖️ Improper Distributions ➲ Liability

Directors are jointly + severally liable for improper distributions (except where there is a Directors' Good Faith reliance defence).

Shareholders are personally liable only if they knew the distribution was improper when they received it.

⚖️ Preemptive Rights: The right to subscribe to new stock issues for cash such that your existing shareholding is not diluted

The right of an existing Shareholder to maintain her percentage of ownership in a Corporation when there is a new issuance of stock for cash (or its equivalent, like a check).

❌ Not applicable: If the new issuance is not for cash.

Modernly, [Opt-in rule] unless the articles of incorporation provide otherwise, a Shareholder does not have preemptive rights.

Does “new issuance” include the re-issue of treasury stock?

Split Authority: No clear majority.

⚖️ Shareholder Agreements

⚖️ Voting Agreements

Often seen in closely-held Corporations.

Voting "Pooling" Trust: (valid for 10 year maximum).

✅ The time limit has been eliminated in many states due to the Revised Model Business Corporation Act (RMBCA).

Occurs when Shareholders:

1️⃣ Agree in writing to transfer their shares to a trustee who votes and distributes dividends in accordance with the voting trust;

2️⃣ Copy is provided to the Corporation;

3️⃣ Legal title to the shares is transferred to the voting trustee;

4️⃣ Original Shareholders receive trust certificates and retain all Shareholder rights except for voting.

Voting Agreement: A written agreement where the parties agree to vote their shares as agreed.

In some states Voting Agreements are specifically enforceable (if so, there is no need for a Voting "Pooling" Trust; in other states this is not the case and a Voting Trust is required.

Management Agreement: Occurs where the Shareholders agree to manage the Corporation in an agreed-upon way as set forth in the articles or by-laws (valid for ten years).

⚖️ Restrictions on Stock Transfers

Generally upheld if reasonable.

For example: A right of first refusal, but absolute restraints are not reasonable.

A 3rd party will only be bound:

✅ If the restriction is conspicuously noted; or

✅ The 3rd party had knowledge.

⚖️ Shareholder Suits

Direct: A Shareholder may bring a suit for breach of fiduciary duty owed to the shareholder (not the Corporation itself).

Derivative: A Shareholder may bring a derivative suit on behalf of the Corporation for harm done to the Corporation.

The Corporation receives the recovery, if any, and the Shareholder is entitled to reimbursement for the expenses of litigation.

The Shareholder bringing the suit must:

1️⃣ Own stock at the time the claim arose and throughout the suit;

If not owned directly, Ok to have gotten the stock by "operation of law", that is, inheritance/divorce.

2️⃣ Adequate representation of the Corporation's interest;

3️⃣ Make a Written Demand on Directors to bring suit or redress the injury and the demand is rejected.

Corporation has 90 days to respond unless waiting that long would cause irreparable injury.

The demand requirement used to be excused if doing so would be futile (still the case in many other states), but it is required modernly.

Futility would be evidenced where the majority of the Director's will be the Defendants in the suit.

4️⃣ Join the Corporation as a Defendant (technicality).

✅ Settlement or Dismissal of a Derivative Suit only possible with Court approval.

The Court may give notice to Shareholders to get their input on whether to dismiss or settle.

❌ Corporation can move to dismiss on the basis that independent investigation (b y independent directors or Court-appointed panel of 1 or more independent persons) showed the suit was not in the Corporation's bets interest (e.g., low chance of success or expense would exceed recovery).

In ruling on the motion, the Court will look to see if those recommending the dismissal are independent, and if so, dismiss.

In some states, the Court will also make an independent assessment of whether dismissal is in the Corporation's best interest.

⚖️ Shareholder Duties

⚖️ Shareholder's Duties to other Shareholders

In a Close Corporation, especially controlling Shareholders should not oppress minority Shareholders, e.g.., by selling control to people who loot the Corporation (without reasonable investigation of the buyer).

If there's oppression, a harmed minority Shareholder can sue the controlling Shareholder who oppressed them.

Courts let minority Shareholders sue in these situations, because a minority Shareholder in a Closely-held Corporation has no exit.

There is no market for the stock of a Closely-held Corporation.

⚖️ Close Corporation

Shareholders can eliminate the Board and run the Corporation directly in a Close Corporation, which is a Corporation with:

✅ A small number of Shareholders; and

✅ Stock is not publicly traded.

How is this done? Either

1️⃣ In the Articles or By-laws [approved by all Shareholders]; or

2️⃣ By unanimous written Shareholder agreement.

Either way, the agreement should be conspicuously noted on the front and back of the stock certificates.

In this "Extremely Rare" situation: The Shareholders are running the Corporation, and therefore owe the Director Duties of Care, Loyalty, Disclosure to the Corporation.

⚖️ Dissenter Appraisal Rights

A dissenting Shareholder to [any of the following: Merger or Consolidation, Transfer of substantially all assets not in the ordinary course of business, or transfer of shares in a share exchange, or an Amendment of the Articles that effectuates a reverse stock-split] may exercise their right to force the Corporation to buy them out at fair value.

❌ Right not available if the stock is listed on a national exchange; or has

❌ 2,000 or more Shareholders.

✅ So, in effect, the right of appraisal exists in Closely-held Corporations.

💡 The right may exist even without dissenting at an actual Shareholder Meeting - as in the case of a short-form merger.

To perfect the right:

1️⃣ Before Shareholder vote, file written notice of objection + intent to demand payment;

2️⃣ Abstain or vote against the proposed change; and

3️⃣ After the vote, within time set by Corporation, make written demand to be bought out and deposit stock with the Corporation.

If the Shareholder and the Corporation cannot agree on a fair value, the Court may appoint an appraiser.

This is the Shareholders' only remedy for these fundamental changes (absent fraud).

Credits:

This FAQ was prepared by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

⚖️ Corporation Management, Directors + Officers

✅ Director required: All Corporations must have at least 1 director (no maximum + numbers may vary);

✅ Articles of incorporation are publicly filed with the state to establish the Corporation, and any provisions contained in the articles will govern the Corporation;

✅ By-laws: Management of the Corporation is conducted in accordance with the articles of incorporation and any by-laws (private internal to the Corporation) adopted by the board, which typically contain management provisions;

✅ Election of the Board of Directors: The initial board is elected at the first annual meeting and each year thereafter unless terms are staggered;

✅ Officers + Committees are appointed by the Board to implement Board decisions + carry out operations.

A Committee of 1 or more Directors can make recommendations to the full board for its action, but cannot:

❌ Fill board vacancies; or

❌ Declare dividends.

✅ Officer authority: Officers have authority to act on behalf of the Corporation based on agency law principles.

An Officer's authority to bind the Corporation may be express, implied or apparent.

Officers owe the same Duties of Care and Loyalty as Directors.

The president or chief executive of a Corporation has implied actual authority (and apparent authority) to bind the Corporation to contracts in the ordinary course of business.

Traditionally, and in California a Corporation must have a president, secretary and treasurer. Can have others.

Today, and in California, one person can hold multiple offices simultaneously.

The Revised Model Business Corporation Act (RMBCA) doesn't require that a Corporation have any officers.

Removal of a Director: A Director may be removed with or without cause by a majority shareholder vote, unless the articles state removal only with cause permitted.

Who selects the Director's replacement?

Generally the Board or the Shareholders.

If the Shareholders caused the removal of the Director, generally they must select the replacement.

Removal of an Officer: The Board may remove an officer at anytime with or without cause (subject to the terms of their employment agreement).

It can therefore be assumed that removal of an officer without cause will in most cases incur liability for contractual breach by the Corporation.

A principal can always terminate an agent.

Resignation: A Director or Officer may resign at anytime with notice.

💡 Shareholders hire and fire Directors, and the Board hires and fires Officers.

⚖️ Actions of the Board of Directors

Meetings: The Board of Directors must hold meetings, which may be regular meetings (no notice required) in accordance with the by-laws or unscheduled special meetings requiring at least 2 days' notice of time + place [no need to specify the purpose].

Failure to give required notice: Voids the meeting, unless the Directors not sufficiently notified waive the notice defect.

✅ Directors can do this in writing at anytime, or by attending the meeting without objecting.

Quorum requirement: A quorum, which is the majority of the Board of Directors, must be present at the time a vote is taken for board action to be valid, unless by-laws or articles allow otherwise.

Note: No fewer than 1/3 of Board members can be used to establish a quorum.

Presence: Presence can be by any means of communication (zoom conference call is an example) so long as all members can hear each other and the means is not prohibited by the articles or by-laws.

❌ Members with conflicts don't count toward the quorum.

❌ Proxies or Voting Agreements not allowed for Directors.

Broken Quorum: Unlike the situation for shareholders, a Director may break quorum by withdrawing from a meeting before the vote is taken.

Dissenting members: A Director is presumed to concur with Board action unless their dissent or abstention is noted in writing in corporate records.

In writing means:

1️⃣ Recorded in the minutes; or

2️⃣ Delivered in writing to the presiding officer at the meeting; or

3️⃣ Written dissent, delivered to the Corporation immediately after the meeting.

❌ A Director cannot dissent if they voted for the resolution at the meeting.

Actions without meetings: An action can be taken without a meeting:

✅ If all Directors sign a written consent describing the action taken and include that in the minutes or file it with corporate records; otherwise

❌ The action is void, unless ✅ Validly Ratified by the Board at a later time.

Delegation: The Board may delegate authority to a committee, or an officer.

⚖️ Fundamental Corporate Changes

Fundamental changes to the corporate business cannot be decided by the Board alone, they must be approved by a Majority Shareholder Vote.

Majority Shareholder Vote: At a meeting where a quorum was present to start the meeting, votes cast in favour must exceed votes cast against.

Typical procedure to make a fundamental change:

✅ Board adopts a resolution of fundamental change;

✅ Written Notice is given to Shareholders (10-60 days before next shareholder meeting where vote will occur);

✅ Shareholders approve the change by Majority Vote;

✅ The change is updated in the articles, which are filed with the state [Not required if only assets have been sold].

Note: Some jurisdictions require the vote to be by a majority from the votes entitled to be cast, which is a higher standard than the typical quorum rule.

⚖️ Types of Fundamental Corporate Changes

1️⃣ Merger (or Consolidation where A Corp., and B Corp., form C Corp.);

Short-form merger [No shareholder meeting/approval required if a 90% or-more owned subsidiary is merged into a Parent Corporation].

💡 Note: Surviving Corporation succeeds to all rights and liabilities.

2️⃣ Share exchange;

3️⃣ Sale of Substantially All [varies from state to state: rule of thumb at least 75%] of the Assets Not in the Ordinary Course of Business;

💡 Note: Only a Fundamental Corporate Change for the Selling Corp.

4️⃣ Conversion;

5️⃣ Amendment of Articles or by-laws after shares have been issued requires:

✅ Approval of the directors and shareholders;

✅ The amendment must be filed with the state

No Shareholder approval needed to delete names of directors or agents, change company name or corporate abbreviations (eg., Inc. to Corp.), or to change the number of shares in share split if only 1 class (if more than 1 class, then each class can vote as a group).

6️⃣ Dissolution + Winding Up

Voluntary Dissolution

Judicial Dissolution [By Court Order]

1️⃣ A Shareholder can petition for involuntary dissolution because of:

❌ Director abuse, waste of assets, misconduct;

❌ Director deadlock that harms the Corporation; or

❌ Shareholders have failed at two consecutive annual meetings to fill a vacant Board position.

A Court might order buy-out of the objecting Shareholder as an alternative to ordering involuntary dissolution especially in a closely-held Corporation.

2️⃣ A Creditor may petition because the Corporation is insolvent and they have a unsatisfied judgment or the Corporation admits the debt in writing.

Next Step: Wind-up or Liquidate the Corporation.

✅ Gather all assets;

✅ Convert to cash;

✅ Pay Creditors;

✅ Distribute remainder to Shareholders, pro-rata by share unless there is a liquidation preference.

A liquidation preference must be specified in the Articles.

Involuntary Administrative Dissolution

When a Corporation fails to timely file an annual report, fails to maintain a registered agent, the Secretary of State may administratively dissolve the Corporation.

⚖️ Dissenter Appraisal Rights

A dissenting Shareholder to [any of the following: Merger or Consolidation, Transfer of substantially all assets not in the ordinary course of business, or transfer of shares in a share exchange, or an Amendment of the Articles that effectuates a reverse stock-split] may exercise their right to force the Corporation to buy them out at fair value.

❌ Right not available if the stock is listed on a national exchange; or has

❌ 2,000 or more Shareholders.

✅ So, in effect, the right of appraisal exists in closely-held Corporations.

💡 The right may exist even without dissenting at an actual Shareholder Meeting - as in the case of a short-form merger.

To perfect the right:

1️⃣ Before Shareholder vote, file written notice of objection + intent to demand payment;

2️⃣ Abstain or vote against the proposed change; and

3️⃣ After the vote, within time set by Corporation, makewritten demand to be bought out and deposit stock with the Corporation.

If the Shareholder and the Corporation cannot agree on a fair value, the Court may appoint an appraiser.

This is the Shareholders' only remedy for these fundamental changes (absent fraud).

Credits:

This FAQ was prepared by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

⚖️ Rights of Directors + Officers

Fair Compensation: A Director or Officer is entitled to fair compensation, the rate of which the Board of directors determines.

Note: It is not a conflict of interest for the Board to set reasonable director compensation in good faith unless the articles or by-laws state otherwise. If excessive itis a waste of corporate assets and a breach of the Duty of Loyalty.

Indemnification:

✅ Mandatory indemnification for expenses incurred:

1️⃣ On behalf of the Corporation; and for

2️⃣ Expenses incurred if they prevail in a proceeding brought against them by the Corporation.

❌ Discretionary indemnification where the director or officer is unsuccessful in proceedings brought against them by the Corporation if they:

1️⃣ Acted in good faith; and

2️⃣ They believed their actions were in the best interest of the Corporation;

❌ Unless they are liable due to an improper financial benefit.

Inspection: A Director or Officer has a right to a reasonable inspection of corporate records or facilities.

⚖️ Duties of Directors + Officers

1️⃣ Duty of Care [Burden on the Corporation Plaintiff]

State the Duty of Care standard: A Director or Officer owes the Corporation a duty of care.

They must act in good faith and do what a prudent person would do with regard to their own business.

Nonfeasance: The Director does nothing.

Apply the standard: A prudent person would attend some meetings and so some work. If the Director never did anything, they have breached the duty of care.

‍Liable only if the breach caused a loss to the Corporation.

Misfeasance: The Board does something that hurts the Corporation - so causation in these cases is clear.

Apply the standard: Here, the Directors' action caused a loss to the Corporation and was arguably imprudent given that it turned out badly BUT a Director is not liable if they meet the Business Judgment Rule (BJR).

⚖️ The Business Judgment Rule

A Court will not second guess a business decision if it was:

1️⃣ Informed;

2️⃣ Made in Good Faith;

3️⃣ Without Conflicts of Interest; and

4️⃣ Had a Rational Basis.

So, are the Directors' liable here for breach of the duty of care?

It depends on the facts.

✅ Was the Board reasonably informed?

✅ Did it do appropriate homework before making the decision (analyze information, deliberate)?

✅ Did it act in good faith, free of self-interest, and with the belief that the decision was in the best interest of the Corporation?

If so, the Directors' are not liable, despite the poor substantive outcome of the decision, because the BJR recognizes that a Director is not a guarantor of success.

Reliance on others: It is not unreasonable for a Director to rely on information from officers, legal counsel, committees, etc. the Director reasonably believes to be reliable and competent.

💡Point of comparison: This ability to rely on the information from others is in direct contrast to the position of Directors in Australia, who must exercise their own independent judgment + cannot rely blindly on the advice/information of officers/experts.

For a more detailed discussion please refer to my blog article: The Business Judgment Rule for Directors [Australia v. U.S.A.]

2️⃣ Duty of Loyalty [Burden on the Defendant Director]

❌ The BJR does not apply, it's about conflict, not business judgment.

State the Duty of Loyalty standard: A Director or Officer owes the Corporation a duty of loyalty.

They must act in good faith and with a reasonable belief that what they do is in the corporation's best interest.

❌ Conflict of Interest (self-dealing) = Interested Director Transaction

A Director or Officer has a conflict when they (or a Corporation they own or have a relationship with, or their family member):

1️⃣ Enter into a contract with the Corporation; or

2️⃣ Have a beneficial financial interest in a contract.

Self-dealing contracts are presumed unfair + voidable.

The Interested Director Transaction will be set aside (or the Director will be liable in damages) UNLESS the Director shows the conflict was cured.

The Conflict can be shown to be cured if:

✅ Authorised by disinterested directors after material disclosure; or

✅ Approved by a majority of disinterested shareholders after material disclosure; and

✅ The transaction was fair to the Corporation when entered into.

Even if the deal is approved by an appropriate group:

Some Courts always require a showing of fairness even if disinterested directors/shareholders approve it.

❌ Usurping a Corporate Opportunity (Expectancy)

A Director or Officer may not personally act on a business opportunity without first offering it to the Corporation where the Corporation would expect to be presented the opportunity.

What opportunities would the Corporation expect to be presented with?

⚖️ Some say it's something in the Corporations line of business.

There are other tests to through in:

⚖️ Something the Corporation has an contractual or property right interest or expectancy (tentative claim); or

⚖️ Something the Director or officer found on Co. time or with Co. resources.

Q: Is the Corporation's financial inability to pay for the opportunity a defence?

A: Probably not.

The director or officer may take the opportunity only after:

✅ Good faith rejection of the opportunity by the Corporation if there was full disclosure of all material facts to a disinterested board majority.

Remedy: If the Director or Officer usurps a corporate opportunity, then the Corporation may compel that Director or Officer to:

1️⃣ Turn over the opportunity at the Director's cost; or

2️⃣ Disgorge profits (constructive trust equitable restitution theory).

❌ Competing Ventures

A Director or Officer may not unfairly compete with the Corporation.

Remedy: If the Director or Officer unfairly competes, then the Corporation may compel that Director or Officer to:

1️⃣ Turn over the relevant competing opportunity/opportunities; or

2️⃣ Disgorge profits (constructive trust equitable restitution theory).

3️⃣ Duty to Disclose

Directors and Officers have a duty to disclose all material information relevant to the Corporation to Board members.

Credits:

This FAQ was prepared by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

⚖️ Potential Liability of Directors + Officers

1️⃣ Losses caused by Ultra Vires Acts;

2️⃣ Improper distributions (see discussion below);

3️⃣ Breach of Director/Officer Duties;

 4️⃣ Improper loans - OK only if it is reasonably expected to benefit the Corporation.

💡 Sarbanes-Oxley Act (Federal Law) generally forbids loans to executives in large, publicly traded ("registered") Corporations.

It requires the Board of such a large Corporation to establish an audit committee and to oversee work of registered public accounting firm.

Chief executive and financial officers must certify accuracy and completeness of financial reports.

⚖️ Which Directors are liable?

⚖️ Defences

✅ Dissenting members: A Director is presumed to concur with Board action unless their dissent or abstention is noted in writing in corporate records.

In writing means:

1️⃣ Recorded in the minutes; or

2️⃣ Delivered in writing to the presiding officer at the meeting; or

3️⃣ Written dissent, delivered to the Corporation immediately after the meeting.

❌ A Director cannot dissent if they voted for the resolution at the meeting.

✅ An absent Director is not liable for Board action done at the meeting they missed.

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✅ Reliance on others: It is not unreasonable for a Director to rely in good faith on information (including financial information) presented by an officer, legal counsel, committees (where the Director was not a member), or professional reasonably believed competent.

💡Point of comparison: This ability to rely on the information from others is in direct contrast to the position of directors in Australia, who must exercise their own independent judgment + cannot rely blindly on the advice/information of officers/experts.

For a more detailed discussion please refer to my blog article: The Business Judgment Rule for Directors [Australia v. U.S.A.]

⚖️ Indemnification

💡The Articles of Incorporation can provide for indemnification of a Director or Officer for liability while acting in their role UNLESS they are:

❌ Held liable to the Corporation;

❌ Held to have received an improper financial benefit; or

❌ Committed intentional wrongful acts or crimes.

Mandatory Indemnification

The Corporation must indemnify the Director or Officer if they have prevailed in defending the proceeding against them.

Permissive Indemnification

The Corporation may indemnify the Director or Officer if the case is settled, or in any other situation not covered above.

Eligibility standard: Must show they acted in Good Faith and with a reasonable belief that their actions were in the Corporation's best interest.

Same standard as Duty of Loyalty.

Who determines eligibility?

Disinterested Directors or Shareholders or Independent Legal Counsel.

The Court may order reimbursement in its own discretion

Where a Director or Officer is sued, a Court may decide to order reimbursement if it is justified in view of all of the circumstances.

If they are held liable to the Corporation, this reimbursement is limited to costs and attorney's fees (cannot include judgment).

Important decision to make when drafting the Articles:

⚖️ Whether or not to add an exculpation clause?

Articles can include a clause which eliminates Director liability to the Corporation for damages, but not for intentional misconduct, usurping corporate opportunities, unlawful distributions, or improper personal benefit.

Can exculpatory provisions apply to Officers as well?

Split authority: Some states Yes, some No.

⚖️ Federal Securities Laws

Debt Securities: The investor lends capital to the Corporation, to be repaid (usually with interest) as specified in the agreement.

The debt holder is a creditor.

➲ Secured by corporate assets (bond)

➲ Unsecured (debenture).

Equity Securities: The investor buys stock from the Corporation, which generates capital for the business. Investor is an owner.

⚖️ Insider Trading Rule 10b-5

Federal law prohibits fraud or misrepresentation (or nondisclosure) in connection with the purchase or sale of any security (debt or equity).

Possible Plaintiffs

✅ Securities and Exchange Commission (SEC)

✅ Private action for damages by buyer or seller of securities. If didn't buy or sell, then no cause of action.

Possible Defendants - any person (including entities)

❌ Company that issues misleading press release.

❌ Buyer or Seller of securities who misrepresents material information.

❌ Buyer or Seller of securities who trades on material inside information

(when there is a duty to disclose - again, comes from relationship of trust and confidence with shareholders of the Corporation).

❌ Tipper or Tippee.

Financial Benefit - clear

Still liable if you only get a personal benefit, but personal benefit is broadly defined.

Enhancing reputation is enough.

💡 Note: When there is no tipper, there cannot be a tippee.

Elements:

1️⃣ At some point the deal must use "instrumentalities and channels of interstate commerce".

This means the facilities enabling the movement of goods and people in interstate commerce or used for interstate communications.

2️⃣One of the following transaction types

❌ Misrepresentation of material information

❌ Insider trading: Trading securities on the basis of material inside information. This is only a problem for someone high enough in the business hierarchy that they have a duty to abstain or ensure disclosure so that everybody's on the same footing.

Who has this duty?

Someone with a relationship of trust and confidence with Shareholders.

Generally this would include:

Directors;

Officers:

Employees of the insurer with access to confidential information.

❌ Misappropriation: Under the misappropriation doctrine, a person who owes a duty of trust and confidence to the source of the information has a duty to abstain or disclose (e.g., a lawyer in a law firm who discovers confidential information about a firm client who is engaging in a merger; the lawyer owes a duty of trust and confidence to his firm, which has been held, along with the client, to be the source of the information).

❌ Tipping: Here, an insider passes along material inside information for a wrongful purpose.

3️⃣ Materiality

The misrepresentation or omission must concern a "material" fact. One a reasonable investor would consider important in making an investment decision.

4️⃣ Scienter / Intent

D must have an intent to deceive, manipulate, or defraud.  Recklessness may suffice.

Negligently holding a confidential conversation in a public space is not enough for 10b-5 liability.

5️⃣ Reliance

Said to be a separate element, as in fraud cases, but is presumed in public misrepresentation (e.g., a misleading press release) and nondisclosure cases.

6️⃣ Damages

Generally determined by an out-of-pocket measure.

⚖️ Short-Swing Profits Rule 16(b) - Strict Liability

Federal law provides for the recovery by the Corporation (or its shareholders via a derivative suit) of "profits" gained by certain insiders from buying and selling the company's stock.

If, within 6 months before or after any sale, there was a purchase at a lower price, there is a profit.

The sequence of the buy and sell does not matter.

⚖️ Applied to public companies or "Reporting" Corporation

✅ Listed on a national exchange;

at least 2,000 Shareholders; or

500 Non-Accredited Shareholders; and

✅ $10 million in assets.

Accredited Investor is a defined term meaning, in general, an investor who can handle risk, such as an institutional investor or wealthy individual.

Types of Defendants:

👉 Director (either when they bought or sold); or

👉 Officer (either when they bought or sold); or

👉 Shareholder who owns more than 10% (both when they bought and sold).

Type of transaction:

Short-swing trading: Buying + Selling stock within a single 6 month period.

No fraud or inside information is needed.

⚖️ Sarbanes-Oxley Act sets Standards for Publicly Traded Companies

Board oversees public accounting firms that perform audits and create rules pertaining to corporate financial reporting

Enhanced Reporting Requirements, including:

✅ Audit Board;

✅ Senior executives;

✅ If a filing is inaccurate.

Criminal Penalties:

❌ Destroying or altering corporate documents and/or audit records is punishable by ➲ A $5million fine + up to 20 years in prison;

❌ Securities Fraud ➲ Up to 25 years in prison;

Statute of Limitations is the later of 2 years after discovery or 5 years after the action accrued.

Whistleblowers are afforded protection.

Credits:

This FAQ was prepared by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

⚖️ Corporate Powers

It is assumed that all Corporations are formed for any lawful business purpose unless the articles define a limited, specific purpose.

❌ Ultra Vires acts: If a Corporation has a limited stated purpose and it acts outside its stated business purpose, it is acting "ultra vires".

At common law, an "ultra vires" contract could be voided.

Modernly, "ultra vires" acts are generally enforceable as to 3rd parties.

Ultra vires acts may be raised when:

1️⃣ The "ultra vires" act causes the State to seek dissolution;

2️⃣ The Corporation sues an Officer/s or responsible manager/s or employee/s (presumably who has purported to act on behalf of the Corporation in committing the ultra vires act) for losses caused by the ultra vires act; or

3️⃣ A Shareholder sues to enjoin (or urgently stop - usually via an injunction) the proposed ultra vires act.

⚖️ Corporate Powers (Acquire Debt)

Corporations may borrow funds from outside sources to pursue the corporate purpose.

Lenders do not acquire an ownership interest in the Corporation.

Debts may be secured (a bond) or unsecured (a debenture).

⚖️ Corporate Powers (Issue Stock)

A Stock Subscription Agreement is a contract where a subscriber makes a written promise agreeing to buy a specified number of shares of stock.

A post-incorporation subscription creates a contract between the subscriber and the Corporation.

The contract is formed when the Board accepts the offer, therefore:

✅ A post-incorporation subscription is revocable until acceptance by the Board.

A pre-incorporation subscription is irrevocable for 6 months unless:

✅ Otherwise stated in the agreement; or

✅ All subscribers agree to revocation.

Shares of Stock are equity securities that give the shareholder an ownership interest in the Corporation.

Quantity of shares available: The articles of incorporation authorise the number of shares available to be sold.

Shares that are sold are issued and outstanding.

Shares that have yet to be sold are authorised but unissued.

Types of Shares: The Articles of Incorporation can provide that different classes of stock shares are available (common or preferred).

Preferred shares must state:

✅ The number of shares in each class;

✅ A distinguishing name/classification for each class; and

✅ The rights, preferences, limitations, etc., of each class.

Consideration is required in exchange for stock shares and can include any tangible or intangible property or benefit to the Corporation, such as cash, property, an exchange for past services rendered, or cancellation of a debt owed, etc.

The Board determines the value of the property, past services, etc.

The Board's valuation is conclusive, so long as it was made in good faith.

Jurisdictions are split as to whether to include the exchange for future services or promissory notes, that is, unsecured debt (e.g., the Revised Model Business Corporation Act (RMBCA) does allow these; *CA does not).

💡 Purporting to use invalid forms of consideration results in “unpaid stock” (meaning it is treated as water).

The Corporation will seek recovery for the value of the unpaid stock or water from:

✅ The Directors if they knowingly authorised the issuance of stock for invalid consideration; and potentially

✅ The purchaser of the stock (if they had notice that their consideration was invalid, or have not yet performed the future services, etc).

Traditional par value approach means the price is the stated minimum issuance price. Stock may not be sold by the Corporation for less than par value.

💡 Whenever a par price has been set, watch for watered stock.

The Corporation will seek recovery for the value of the unpaid stock or "water" from:

✅ The Directors, if they knowingly authorised the issue of stock for less than the par value.

✅ The purchaser of the stock (there is no defence; the purchaser is charged with notice of the par value.)

❌ If the purchaser transfers the shares to a third-party (TP). TP is not liable if they did not know about the water.

Board's good faith: No par approach means there is no minimum issuance price for the stock; generally the board of directors' good faith determination of the price is conclusive.

Treasury Stock: is the stock that was previously issued and had been reacquired by the Corporation. It can be resold for less than par value and is treated like no par stock.

Credits:

This FAQ was prepared by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is a Director ID?

A Director ID is a unique identifier that a director will apply for once and keep forever.

The intended purpose of Director ID's is to help prevent the use of false or fraudulent director identities.

All Directors + Alternate Directors (acting in that capacity regardless of the title used for example: Power of Attorney) of a company, registered Australian body, registered foreign company or Aboriginal and Torres Strait Islander corporation will need a Director ID.

ASIC is responsible for enforcing Director ID offences set out in the Corporations Act (Cth) 2001.

‍It is a criminal offence if Directors or Alternate Directors do not apply on time and penalties may apply.

When do you need to apply to avoid committing a criminal offence?

When you MUST APPLY for your Director ID depends on when you first become a Director or Alternate Director/Power of Attorney to act in the capacity of a Director.

For Directors + Alternate Directors/Power of Attorney of companies regulated by ASIC and registered under the Corporations Act 2001:

✅ Intending new Directors or Alternate Directors/Powers of Attorney must apply before being appointed.

✅ Directors or Alternate Directors/Powers of Attorney appointed on or before 31 October 2021 have until 30 November 2022 to apply.

✅ New Directors or Alternate Directors/Powers of Attorney appointed for the first time between 1 November 2021 and 4 April 2022 had 28 days from their appointment to apply.

Directors (and possibly Alternate Directors/Powers of Attorney) of companies regulated by the Office of the Registrar of Indigenous Corporations and registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 have a different time frame in which to apply. If this applies to you, please visit the ABRS website for more information on when you need to apply.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Criminal Offence + Civil Penalties Apply to the failure to obtain & misuse of a Director ID.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is an ABN?

An ABN is a unique 11 digit number that identifies your business to the government and community.

It doesn't replace your TFN tax file number, or your ACN Australian Company Number (if your legal entity is a Company).

You can use an ABN to:

✅ Identify your business to others when ordering and invoicing;

✅ Avoid pay as you go (PAYG) tax on payments you get;

✅ Claim goods and services tax (GST) credits;

✅ Claim energy grants credits; and/or

✅ Get an Australian domain name.

Not all Businesses need an ABN

To obtain an ABN you need to be running a business or other enterprise.

Visit the Australian Business Register (ABR) website to find out about your entitlement to an ABN.

When must my business register for an ABN?

It is compulsory for businesses with a GST turnover of $75,000 or more to have an ABN and to be registered for GST.

How to Register for an ABN

Before you register, please ensure you have the following:

⚖️ Decided Your Business Structure or Legal Entity, and have the details on hand;

⚖️ Proof of Identity;

⚖️ Be able to provide details of your business activities or proposed business activities + associates.

👉 Register for an ABN

Check your / Supplier's ABN Registration Details

You can use the ABN Lookup website to look up information about a registered ABN.

For example, to check:

✅ That your ABN details are up-to-date; and

✅ The details of a supplier.

ABN Lookup allows you to search publicly available information supplied by businesses when they register for an ABN.

👉 Search ABN Lookup

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Lost or Unknown Super Funds?

A deceased person's Super Fund balances and any associated benefits (such as a death or permanent incapacity benefit) payable from an insurance policy held by your Super Fund do not ordinarily form part of the deceased's estate.

These moneys are paid in accordance with the Super Fund Trustee's discretion or in accordance with your Binding Death Benefit Nomination (assuming the Super Fund/s allows these to be made) and whether the deceased's nomination/s were validly made.

As Super balances can be substantial, and even if this is not the case death or permanent incapacity benefit payments could create a substantial sum payable from the Super Fund/s.

It is extremely important that you contact our legal team to discuss how to search for any unknown or lost Super Fund balances.

Searching for Lost or Unknown Super

As at 2021, there is more than $20 Billion held or reported to the ATO as Lost Super.

ATO

Reuniting Australians with their super – a new law to protect superannuation savings started from 1 July 2019.

Super providers are required to report and pay unclaimed super and inactive low-balance accounts to the ATO.

You can search for lost super:

🔎 Online using myGov;

🔎 Phoning the ATO lost super search line; or

🔎 Completing a paper form.

Who can have unclaimed super?

The following are some of the reasons unclaimed monies are paid to the ATO:

🧩 Member 65 years old or older;

🧩 Non-member spouse; or

🧩 Deceased member.

Free Online Super Finder Services

🔎 You can ask a known preferred super fund to conduct a free search on your behalf; or you can

🔎 Use a free online service.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

The court may consider the following factors

⚖️ The relationship between the applicant and the deceased person;

⚖️ Any obligations or responsibilities owed by the deceased person to the applicant;

⚖️ The value and location of the deceased person's estate;

⚖️ The financial circumstances of the applicant, including their current and future financial needs;

⚖️ Whether the applicant is financially supported by another person;

⚖️ Whether the applicant has any physical, intellectual or mental disabilities;

⚖️ The applicant's age;

⚖️ Any contribution made by the applicant to increase the value of the estate;

⚖️ Whether the deceased person has already provided for the applicant during their lifetime or from the estate;

⚖️ Whether the deceased person provided maintenance, support or assistance to the applicant;

⚖️ Whether any other person is responsible to support the applicant;

⚖️ The applicant's character;

⚖️ Any applicable customary law if the deceased was Aboriginal or Torres Strait Islander;

⚖️ Any other claims on the estate; and

⚖️ Any other matter the court may consider as relevant.

Credits:

This FAQ was prepared by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is a Charging Clause?

A "Charging Clause" may be included in an unsecured credit or loan agreement.

Think of it as your last line of defence.

In the event there is a default of the credit arrangement/loan, a "Charging Clause" grants the credit provider/lender the legal right (including the power of attorney) to immediately prepare, sign + register a charge against any property (real or personal) owned by the borrower.

Securing the Debt on the PPSR - Personal Property Security Register is Recommended

Our recommended approach (superior to a "Charging Clause") to document clearly up front (before advancing the funds) an enforceable personal property security capable of being registered on the PPSR - Personal Property Security Register is via our General Security Deed over Personal Property.

If the credit or loan is already secured by a mortgage or a registered security on the PPSR - Personal Property Security Register then a separate "Charging Clause" is not required as repayment of the loan has already been secured.

Why is a "General Security Deed" recomended?

If an debt is owed, then without a General Security Deed registered on the PPSR - Personal Property Security Register or at the very minimum a "charging clause" it can be costly + time intensive + risky to obtain repayment of the debt using standard Debt Collection tools such as a Letter of Demand, etc.

When a debt is unsecured, even if legal proceedings are successful and a Local Court or Tribunal money judgment is obtained there is still no guarantee that the money will be repaid.

The formal Court money judgment enforcement processes in Australia do not include the right to place a permanent charge against the borrower's property.

There is also the possibility that at the time the borrower defaults (or at the time a Court judgment is obtained) the borrower may not own any real or personal property, and might be unemployed so that a "Charging Clause" / Court money judgment is of little benefit.

Presuming this is not the case, and the borrower does own real or personal property, taking steps to register security against these assets, or if this is not possible, at the very least using a "Charging Clause" can greatly simplify, fast track and increase your prospects of making a full recovery of the debt owed.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What types of Foreign Court Judgments can be registered for enforcement in Australia?

Superior Courts

The following is a list of the Foreign Countries extracted from the Foreign Judgments Regulations 1992 (Comm.) with arrangements as at 1 December 2021 to recognise Australian Court judgments which in turn may be recognised and capable of registration in Australian Courts:

Regulation 4 ➲ Schedule Superior Courts

1A

Province of Alberta, Canada

Supreme Court of Canada
Court of Appeal of Alberta
Court of Queen's Bench of Alberta

2

Bahamas, The Commonwealth of the

Court of Appeal
Supreme Court

3

Province of British Columbia, Canada

Supreme Court of Canada
Court of Appeal of British Columbia
Supreme Court of British Columbia

4

British Virgin Islands

Eastern Caribbean Supreme Court

5

Cayman Islands

Grand Court

6

Dominica,
Commonwealth of

Eastern Caribbean Supreme Court
Court of Appeal
High Court of Justice

7

Falkland Islands

Court of Appeal
Supreme Court

8

Fiji, Republic of

Supreme Court
Court of Appeal
High Court

9

France (French Republic)

Cour de Cassation
Cours d'Appel
Tribunaux de grand instance
Tribunaux de commerce
Cours d'assise
Tribunaux correctionnels

10

Germany, Federal
Republic of

Bundesgerichtshof
Oberlandesgerichte
Bayerische Oberste Landesgericht
Landgerichte

11

Gibraltar

Court of Appeal
Supreme Court

12

Grenada

Supreme Court (consisting of the:
Court of Appeal; High Court)

13

Hong Kong Special Administrative Region of the People's Republic of China, The

Court of Final Appeal
High Court
(consisting of the: Court of Appeal; Court of First Instance)

14

Israel, State of

Supreme Court
District Courts
Moslem Religious Courts
Druze Religious Courts

15

Italy (Italian Republic)

Corte Suprema di Cassazione
Corte di Assise
Corte d'Appello
Tribunale

16

Japan

Supreme Court
High Courts
District Courts
Family Courts

16A

Korea, Republic of

Supreme Court
Appellate Courts
District Courts
Family Court
Patent Court
Administrative Court

16B

Malawi

High Court
Supreme Court

17

Province of Manitoba, Canada

Court of the Queen's Bench of Manitoba

18

Montserrat

Privy Council
Eastern Caribbean Court of Appeal
High Court of Montserrat

19

Papua New Guinea

Supreme Court of Justice National Court of Justice

19A

Poland, Republic of

Supreme Court
Commercial Courts
Courts of Appeal
Provincial Courts

20

St Helena

Supreme Court

21

St Kitts and Nevis, Federation of

Privy Council
Eastern Caribbean Court of Appeal
High Court (Saint Christopher Circuit)
High Court (Nevis Circuit)

22

St Vincent and the Grenadines

Eastern Caribbean Supreme Court (consisting of the:
Court of Appeal,
High Court)

23

Seychelles, Republic of

Court of Appeal
Supreme Court

24

Singapore, Republic of

Privy Council: in respect of orders made on appeals from the Singapore Supreme Court and filed with the Court of Appeal of Singapore

Supreme Court of Singapore (consisting of the: Court of Appeal; High Court)

25

Solomon Islands

Court of Appeal
High Court

25A

Sri Lanka

Supreme Court
Court of Appeal
High Court
District Court

25AA

Switzerland

Bundesgericht
Kantonale Obere Gerichte
Handelsgerichte

25AB

Taiwan

Supreme Court
High Courts
District Courts

25B

Tonga

Court of Appeal
Supreme Court

26

Tuvalu

Court of Appeal
High Court

27

United Kingdom, The

Supreme Court of the United Kingdom
Senior Courts of England and Wales
Court of Judicature of Northern Ireland
Court of Session

28

Western Samoa

Court of Appeal
Supreme Court of Western Samoa

Note: The Eastern Caribbean Supreme Court is constituted by Statutory Instrument 1967 No. 223, as amended by Statutory Instrument 1983 No. 1108, of the United Kingdom.

The Court is differently described in the usage of the countries mentioned in the Schedule in relation to which it is listed as a superior court.

The description used by each of those countries is set out in column 3 of the relevant item in the Schedule.

✅ Reseal of Probate (see below discussion).

Inferior Courts

Regulation 5 Inferior Courts

(2)  Part 2 of the Act extends in relation to the following inferior courts of the United Kingdom:

                    (a)  County Courts (England and Wales);

                    (b)  County Courts (Northern Ireland);

                    (c)  Sheriff Courts (Scotland).

(3)  Part 2 of the Act extends in relation to the following inferior courts of Canada:

                    (a)  the Provincial Court of Alberta;

                    (b)  the Provincial Court of British Columbia;

                    (c)  the Provincial Court of Manitoba.

(4)  Part 2 of the Act extends in relation to the following inferior courts of Switzerland:

                    (a)  Bezirksgerichte;

                    (b)  Erstinstanzliche Gerichte;

                    (c)  Arbeitsgerichte;

                    (d)  Mietgerichte.

(6)  Part 2 of the Act extends in relation to each District Court of the Republic of Poland.

For NZ judgments

Please read our FAQ: What types of New Zealand (NZ) Court judgments can and cannot be registered for Enforcement in Australia?

Reseal of Probate

➲ If a deceased had assets in different states of Australia or in certain countries, namely Commonwealth countries where the Queen is the head of state, then it is generally possible to have a Grant of Probate issued by a Court in one jurisdiction recognised in another state or country.

This process of recognising the grant made in the other state or country is called resealing the grant.

NSW Reseal of Probate example:

Not all Grants from other countries can be resealed by the Supreme Court of NSW.

The Probate Court will only reseal Grants made in countries of the "Commonwealth Realm" where the Queen is, or was at the time of the grant, Head of State.

Such countries include the United Kingdom (England, Scotland, Wales and Northern Ireland), New Zealand, Papua New Guinea and Solomon Islands.

Recent grants from the following countries cannot be resealed: Malta, South Africa, Pakistan, India, Sri Lanka, Fiji, Hong Kong or The Republic of Ireland.

If a grant cannot be resealed then it may be necessary to apply for a new Grant of Probate in NSW.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Your Super balance and any associated benefits (such as a death or permanent incapacity benefit) payable from an insurance policy held by your Super Fund do not ordinarily form part of your deceased estate.

These moneys are paid in accordance with the Super Fund Trustee's discretion or in accordance with your Binding Death Benefit Nomination (assuming your Super Fund allows these to be made) and that your nomination has been validly made.

As your Super balance can represent a substantial sum, and even if this is not the case your death or permanent incapacity benefit payment could create a substantial sum payable from your Super Fund.

It is extremely important that you contact our legal team to discuss how to maximise the chances that both your deceased estate and your Super Fund balance are distributed according to your wishes, whilst minimising the risk of disputes and litigation over their distribution.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Can a Bankrupt run a business as a Sole Trader?

A: Yes, as a Sole Trader under your own name*

*So long as the following important guidelines (as well as others not listed here) are met:

When dealing with your suppliers + customers, you must:

❌ NOT obtain credit of more than $6,065 from any person without informing them of your bankruptcy.

⚖️ This includes buying goods or services on credit, by hire purchase or by cheque;

⚖️ Lease, hire or promise to pay for goods or services; or a

⚖️ Promise to supply goods or services in return for payment.

✅ Operate the business under your own name; or

✅ If trading under a business name other than your own, you must inform every single person you deal with that you are an undischarged bankrupt.

Warning: Breach of the above may constitute a criminal offence pursuant to s.269 Bankruptcy Act 1966 (Comm.) carrying maximum 3 year prison sentence.

Can a Bankrupt operate a business using a Business Name?

A: Theoretically Yes (see the important guideline above) however the requirement to advise every single person you deal with that you are an undischarged bankrupt makes doing so impractical.

Can a Bankrupt be a Director of any Company?

A: No

A Bankrupt person is automatically disqualified from being a director of any company.

Note: The amounts mentioned in this FAQ are valid as at 27 October, 2021.

These amounts should only be taken as a general guide as many Bankruptcy related monetary thresholds are indexed/subject to change over time.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.