How do I best deal with what appear to be bleak job prospects + high levels of uncertainty about my future career in the legal profession?

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.

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?

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.

What is NewLaw and why does it Matter? ➲ Changing Mindsets + Culture in the Legal Profession

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 ....

Our Home page: "Who We Are" section states …

"Blue Ocean Law Group℠ are a NewLaw Firm using award-winning co-working spaces in the Sydney, Melbourne & Brisbane CBD's.

We have designed Blue Ocean Law Group℠ to be different on purpose, starting from a blank canvas using the principles of Blue Ocean Strategy®.

As a result, we are currently the only law firm in Australia:

🌊 Directly providing clients with 24/7 access to instantly create circa 140+ Legal Documents using Embedded Lawyer-Logic™; or

🌊 The opportunity to start the process 24/7 & have a lawyer assist to complete the Legal Document during normal business hours.

🌊 All States + Territories of Australia are covered;

🌊 All major areas of Law ➲ both Personal + Business;

🌊 Fixed-Fee or Member Subscription Pricing."

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.

How does using the Digital Safe Custody Vault help me create a Smarter Digital Legacy Plan?

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 the laborious trip there every few years to ensure the details were 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 app means updating passwords or files is simple.

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.

How secure is Blue Ocean Law Group's Digital Safe Custody Vault?

Our Digital Safe Custody Vault is Built like Fort Knox!

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

We use end-to-end military-grade encryption, enforce two-factor authentication, and use social engineering + legal proof prior to triggering release of your Digital Assets.

Our Digital 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 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 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.

What if my Digital Assets are extremely valuable or sensitive?

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.

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

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 actual fact this is not the case.

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 are the only Australian law firm providing you with the option to create Legal Documents online using ⚖️ [Self-Service] and/or [Lawyer-Assisted].

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?

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 and why is this the best place to start?

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.

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℠.

We are not married. When will Australian law impose a "de facto” relationship.

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.

What legal obligations do creditors need to be aware of in taking steps to recover money owed by a consumer or debtor?

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

Do I have any rights after the manufacturer's/service provider's express warranty has expired?

Automatic Consumer Guarantees

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

However, it is still important to understand how these warranties apply to goods or services you buy.

All may not be lost if your express warranty has expired

For example:

A warranty against defects is provided in addition to the automatic consumer guarantees and 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 automatic consumer guarantees apply!

If you need assistance to understand your rights under Australian Consumer Law, we recommend that you consider the following and seek advice from our legal team.

Source: ACCC website. Further information about warranties can be found here.

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.

Does my business/NFP need to have a Privacy Policy + comply with the Australian Privacy Act?

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 below 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?

Further Reading:

What do I need to do before deciding whether to send a Takedown Notice for Online Copyright Infringement [Australian Hosted Website]?

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).

Source: s.40 of the Copyright Act 1968 (Comm.)

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.

We have separated or are thinking about separation. What do we need to read + understand first about seeking assistance, child custody + financial matters?

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.
Marriage, families and separation

Pre-action procedure for parenting cases

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

Before you file pre-action procedure for parenting cases

Pre-action procedures apply to financial cases.

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

Before you file pre-action procedures for financial cases

Compulsory Family Dispute Resolution
➲ Court procedures and Requirements

Compulsory pre-filing Family Dispute Resolution

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.

‍Is a Binding Financial Agreement (BFA) the same as a Prenup?

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.

What is the effect of a Binding Financial Agreement (BFA)?

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.

What products and services are automatically protected/guaranteed under Australian Consumer Law (ACL)?

What products and services are automatically protected/guaranteed?

Businesses must guarantee products and services they sell, hire or lease for:

  • under $40,000; or
  • over $40,000 that are normally bought for personal or household use.

For goods or services supplied from 1 July 2021, the threshold amount will increase to $100,000.

Business vehicles and trailers are also covered, irrespective of cost, provided they are used mainly to transport goods.

Businesses must provide these automatic guarantees regardless of any other warranties they give to you or sell you.

If a business fails to deliver any of these guarantees, you have consumer rights for:

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.

What are the Australian Privacy Principles (APP's)?

Click here to download ...

Source: Office of the Australian Information Commissioner (OAIC) website

Australian Hosted Website "Fair Dealing" Defence v. USA Hosted Website "Fair Use" Defence: Does where the website is hosted makes a difference?

Increasingly, Australian websites are hosted by Internet Service Providers (ISP) 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.

Source: From Wikimedia Commons, the free media repository.

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.

What is the difference between a Lease v. A Licence to Occupy?

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

Summary of the Legal Distinctions between a Licence to Occupy v. Leases

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.

How do I attempt to settle my civil dispute whilst protecting myself from the other side using what I say against me?

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.

When can a Binding Financial Agreement (BFA) be set aside?

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.

We have separated. What date is used to value our net asset pool for settlement between us?

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.

We have separated. Do we need to be officially divorced or wait a prescribed time before our financial settlement can be finalised?

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.

What are the downsides to delaying 1️⃣ Informing the other side of my claim against them; or 2️⃣ Filing my claim with the Court?

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 Automatic Consumer Guarantees apply for products and services covered by Australian Consumer Law (ACL)?

Automatic Consumer guarantees on products and services

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.

Services must:

  • be provided with acceptable care and skill or technical knowledge and taking all necessary steps to avoid loss and damage;
  • be fit for the purpose or give the results that you and the business had agreed to; and
  • be delivered within a reasonable time when there is no agreed end date.

Consumer guarantees on products and services also apply to:

  • 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.

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.

For an Australian Hosted Website: What is a Counter-Notice?

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.

Is a Licence to Occupy a "Lease" for the purposes of AASB 16 Leases? Can it stay off-balance sheet?

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 …
Source: AASB 16 Leases - A Guide published by HLB Mann Judd

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.

Is it possible to obtain insurance against loss at trial in Australia?

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

Aon has placed the first Australian “After the Event” (ATE) policy 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?

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.

What are pleadings + Why are tears so commonly associated with them?

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.

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.

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 the required procedure to file a valid + timely appeal against the decision of a NSW Workers Compensation Commission (WCC) Arbitrator?

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.

For a USA Hosted Website: How does the digital millennium copyright act (dmca) takedown notice procedure work?

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.

What is the required procedure to file a valid + timely appeal to the NSW Court of Appeal?

NSW Court of Appeal: Appeal Procedure

1️⃣ If a Notice of Intention to Appeal 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 2005 (NSW) r 51.8 (‘UCPR’); Supreme Court Act 1970 (NSW) s48(1)(a)(iv).

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 is to start the clock of 3 months within which a Notice of Appeal is to be filed: UCPR rr 51.6, 51.9(1)(a).

4️⃣ The reason for such an effect is that if a Notice of Intention to Appeal is not filed, the Notice of Appeal itself must be filed within 28 days of the material date: UCPR r 51.16(1)(c).  

5️⃣ Failure to lodge a Notice of Intention to Appeal within the 28-day limitation requires two main steps to be taken:

➲ The Notice of Appeal 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 filing of the Notice of Appeal, a Summons Seeking Leave to Appeal, if leave to appeal is required (Legal advice is strongly recommended on this point) must be filed and served on each necessary party: UCPR rr 51.9, 51.10.

9️⃣ A copy of the Notice of Intention to Appeal +/or Notice of Appeal + Summons Seeking Leave to Appeal (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: UCPR r 51.42.

🔟 If a Summons Seeking Leave to Appeal needs to be filed, it can include the request for an extension of time (if applicable): UCPR r 51.10(3).

Note:

The filing and service of a Notice of Intention to Appeal is not an originating process and does not operate to commence proceedings in the Court of Appeal: UCPR r 51.9 (3).

Credits:

The above overview of the NSW Court of 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.

What do I need to do before deciding whether to send a DMCA Takedown Notice for Online Copyright Infringement [USA Hosted Website]?

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.

For a USA Hosted Website: What is a Digital Millennium Copyright Act (DMCA) Counter-Notice?

What is a 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.

We have separated. We have no Binding Financial Agreement (BFA) in place. Should we enter a BFA or seek Court Orders? Can we agree between ourselves?

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 o 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.

What documents does a party need to disclose to meet their duty to make timely, full and frank disclosure?

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.

Glossary of Key Terms used in the Law of Trusts

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.

Glossary of Key Terms used in the Grant of Probate or Letters of Administration in Australia

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.

What happens if a party breaches their duty of timely full and frank disclosure in negotiating Binding Financial Agreements / Family Law Court Proceedings?

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.

Which Court do I/we make an application to? the Federal Circuit & Family Court of Australia / Family Court of Western Australia?

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.

How do I eFile and access my case documents and information online incl. Court Dates in the Federal Circuit & Family Court of Australia / Federal Court of Australia?

The Commonwealth Courts Portal

The 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?

How do I navigate through the Commonwealth Courts Portal?

How do I register for the Commonwealth Courts Portal?

Federal Law Search

The 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: 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.

How is a Hardware Wallet used to physically store Cryptocurrency?

What is a Hardware Wallet?

Hardware Wallets are one of the most secure methods of cryptocurrency storage.

In addition to being completely offline, Hardware Wallets are immune to nearly all computer viruses and malware programs.

Hardware Wallets also have special, protected areas of the microcontrollers that store your private keys.

These prevent your keys from being transferred out of the hardware in plaintext, guaranteeing Always-on Encryption.

In fact, to date, there have been no verifiable incidents of cryptocurrency being stolen from Hardware Wallets.

Popular Hardware Wallets include Ledger, TREZOR, and KeepKey.

Hardware Wallets should always safely stored under lock and key.

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.

Where can I safely store my Original Australian Will + Power of Attorney documents in Safe Custody?

Physical Safe Custody Storage Facilities

Australia-wide Facilities

🔒 Commonwealth Bank

Safe Custody Envelope

If you have important documents – like a Will or Power of Attorney – you don’t want to leave lying around the house, the CBA's Safe Custody envelopes let you store these documents safely and securely at one of CBA's branches.

You can access your documents at any time during bank hours.

How much does it cost?

The annual fee for keeping your items in Safe Custody envelopes and/or boxes at a CBA branch is as follows:

🗄 Standard envelope supplied by the Bank - $88 p.a.* per lodgement

🗄 Non-standard envelopes - $198 p.a.* per lodgement

💰 Safe Custody box  - $198 p.a.* per lodgement

State/Territory Specific Solutions

ACT

🔒 A.C.T Supreme Court
[$125 deposit, $46 withdraw. Prices effective as at 1 August 2020];

NSW

🔒 NSW Trustee + Guardian
[$29 one-time fee for a single document; $49 one-time fee for multiple documents. Prices current as at 19 November 2020].

🔒 Custodian Vaults [Sydney, NSW]

"Legal documents take a considerable amount of effort to draw up, execute and are a costly and sometimes irreplaceable.
Items like deeds, wills, and other legal documents are best stored out of the home and in a secure centralised storage facility. These items are not necessarily best stored in the home safe and in almost all cases best kept offsite.
Custodian vaults offers vaults from $25 per month that will store not only a large quantity of legal paperwork but other personal effects like passports, jewellery and bullion.
Custodian Vaults will offer complimentary insurance up to $10,000 and a nominal amount thereafter. Our insurance is underwritten by Lloyds of London, and is significantly cheaper than any level of house and contents insurance, providing peace of mind as well as in some cases necessary compliance."

 🔒 ARA Security - Safe Custody [Western Sydney, NSW]

ARA Vaults are experts in the secure storage of a highly valuable possessions, such as gold and silver bullion, heirlooms, important documents and data, cryptocurrency (such as Bitcoin) and jewellery.

They provide a range of different Safety Deposit Boxes and Bullion Safes to suit your storage requirements and they offer free unlimited access to your Safety Deposit Box or Bullion Safe at their private, state-of-the-art vault facility in Western Sydney.

Their vault is equipped with highly secure technology and infrastructure, including Iris Biometric identification, to offer world-class security for your most valuable assets, investments and possessions.

NT

🔒 N.T. Public Trustee
[“You can store your Will for free at the Public Trustee office in a specially maintained vault.”];

Victoria

🔒 The Victorian Will + Power of Attorney Registry
[Anyone in Victoria can register information about where they keep their Will + Power of Attorney documents at no charge. There is also the option to physically store originals for free];

WA

🔒 W.A. Will Bank
[Free service operated by the WA Public Trustee];

Queensland

🔒 Reserve Vault [Brisbane, Queensland]

"Secure Document Wallet: Secure document storage held in individual A4 sealed Document Wallet in one of our fire resistance drawer safes. Only $99/year!

🔒 Private Vaults Australia [Redcliffe, Queensland]

Private Vaults Australia chooses  single-use bags manufactured from an opaque COEX material and utilise a high security tamper evident tape (resistant to temperature, moisture, and solvent-based tampering).

The non-see-through nature of the material provides complete privacy making them very discreet.

The bags have writable surfaces and printed with unique serial numbers and have a corresponding barcode for convenience.

Document Storage

SCEC Approved

Features            

  • Serial numbered
  • Entire surface capable of being written on with most markers and pens
  • Tear-off receipt for record keeping
  • Gold level security tape is resistant to temperature, moisture, and solvent-based tampering
  • Material – Polyethylene (PE) plastic
  • Security Closure – X-Safe Level 2
SA + Tasmania

For S.A. + Tasmania
[Contact Us].

Credits:

This FAQ was prepared by Suk Jae Chung | Practical Legal Training (PLT) Placement, Blue Ocean Law Group℠ + 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.

How do I execute my Australian Will so that it is validly witnessed?

Valid Will Witnessing Requirements

We recommend that the Will-maker and the witnesses all sign immediately after each other, in each other’s presence and use the same pen.

This is still the best way to make sure a Will is validly executed because then there can be no argument that the formal requirements were not complied with.

Important: A Beneficiary should not be a witness as they may lose their entitlement under the Will. There are exceptions but we still do not recommend using them unless there is no other option.

Points to note

1️⃣ Use 2 independent adult witnesses who do not have any possibility of a beneficial interest in your estate;

2️⃣ Do not sign copies of the Will as they may become “valid” Wills;

3️⃣ Nothing should be attached to the original Will with a pin or paper clip;

4️⃣ No alterations should be made to the Will after it has been signed.

Please contact us (if you are unsure regarding any of the above) to discuss the best way to proceed to execute your Will when you are ready.

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 can I do if COVID-19 restrictions are making it impossible to execute my Australian Will or other key estate planning documents?

COVID-19 Emergency measures for the witnessing of Australian Wills+

As an emergency response to COVID-19 some states + territories have temporarily relaxed witnessing requirements for Wills + other key documents.

The relaxations allow remote witnessing using an audio-video link (AVL) over the internet. We strongly recommend they only be used as a last resort with the involvement of your lawyer. Practical COVID-Safe alternatives such as "Will through a window!" are preferred.

See our recent blog article "COVID-19 Safe Solutions for Witnessing Wills + Other Key Documents in Australia" 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.

How can I claim a refund/compensation globally for my expenses due to my plane flight being delayed or cancelled/luggage issues, etc.?

Australian Airline Compensation Claims

The ACCC + Australian Consumer Law (ACL) Regulators released a best practice guide for the Travel Industry in July 2020 for COVID-19 related travel cancellations.

You can download a copy here.

We collaborate with AirHelp as our strategic alliance partner to assist our clients with their travel/flight-related compensation claims globally

Click here to find our more.

By entering your Flight Departure + Destination you can check your compensation rights online 24/7.

Source: Airhelp.com

AirHelp has helped over 16 million happy passengers globally with their claims against the airlines.

By way of full disclosure Blue Ocean Law Group℠ are an affiliate of AirHelp and will be paid a € ‎16.00 commission per claim made on your behalf.

Credits:

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

Why do you need a Digital Legacy Plan?

What is a Digital Legacy?

The following definition of Digital Legacy has been extracted from the book * Digital Legacy Plan: A Guide to the Personal and Practical Elements of Your Digital Life

A legacy is anything — material, emotional or digital — that leaves a lasting effect after we pass on.
Many think of this in terms of the material goods typically described in a last Will such as your house, your car, your jewelry, etc.
It's also familiar to think about the emotional legacy we leave in the people who survive us — children, friends, colleagues.
Your legacy is also reflected in your body of work, or the impact you have had on the world around you.
What will you be remembered for?
Digital Legacy is a modern extension of what we leave behind when we pass on.

Why do you need a Digital Legacy Plan?

For entrepreneurs, artists, and other professionals

🧩 Ease of business transition and succession;

🧩 Continuity of important or confidential client or corporate work;

🧩 Transfer of hard-earned social proof and follower trust;

🧩 Preservation of personal or professional reputation;

🧩 Protection of intellectual and creative property;

🧩 Strategy for online revenues or valued marketing and sales system.

For you personally

🤔 You are empowered to determine for yourself your Digital Legacy;

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

🧬 Think of what you want to see in your Museum of Me; and

💡 Consider whether you want to leave behind something more meaningful than material goods such as an Ethical Will / Legacy Letter?

Resources:

➲ Free curated list of related websites + resources see our Digital Legacy ➲ Smartlist.

➲ Digital Legacy Plan: A Guide to the Personal and Practical Elements of Your Digital Life before You Die by Angela Crocker and Vicki McLeod [2019].

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.

If Organisational Culture starts at the top. How do you define the top?

Culture Change: It Starts at the Top!

How do you define the top?

Is it the Board? Or the executive team?  

What role does - or should - a board and the executive team play in the shaping of your organisational culture?

The Top is the Chairman of the Board

The chairman's role is to guide the entire Board and the Executive Team to proactively create + nurture the culture of the organisation.

This is not only good for business it is necessary to discharge their duties according to law incl. the criminal code.

Commonwealth Criminal Code: Culture of Compliance …

The following is an extract from a speech  "The Culture of Compliance - A Judicial Perspective" (FCA) [2003] FedJSchol 16 by Justice RS French of the Federal Court of Australia on a companies responsibilities under the Commonwealth Criminal Code with regard  to creating & maintaining a "compliant culture".

Corporate Culture of Compliance – The Definitions
The term ‘corporate culture’ also appears and is defined in a major Commonwealth statute.
As of 15 December 2001, the provisions of the Commonwealth Criminal Code relating to corporate criminal responsibility apply to all federal offences save for those offences created under Acts which retain specific regimes of corporate responsibility.
Where intention, knowledge or recklessness is a necessary element of an offence that state of mind will be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.
The Code provides in Pt 12.3 the means by which such an authorisation or permission may be established.
These include:
‘(c) Proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision.’ – This may perhaps be referred to as a culture of non-compliance.
Or
‘(d) Proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.’
- This may be referred to as the non-existence of a culture of compliance.
The term ‘corporate culture’ is defined in s 12.3(6) of the Code thus:
‘Corporate culture’ means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities take place.
In determining whether the relevant corporate culture of non-compliance existed or whether no corporate culture of compliance exists, a court may have regard to:
(a) whether authority to commit an offence of the same or a similar character has been given by a high managerial agent of the body corporate; and
(b) whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.

The Importance of Corporate Culture

Extracted from a speech by Greg Medcraft, Chairman, Australian Securities and Investments Commission

Gilbert + Tobin Board Luncheon (Melbourne, Australia) 15 June 2017

Culture
So, what is culture?
Culture is a set of shared values and assumptions within an organisation.
It reflects the underlying ‘mindset of an organisation’, the ‘unwritten rules’ for how things really work.  
It works silently in the background to direct how an organisation and its staff think, make decisions and actually behave.
Andrew Bailey, Chief Executive at the UK Financial Conduct Authority recently commented that culture was ‘everywhere and nowhere’.
He explained that this reference was meant to convey that almost everything that goes on in an institution affects its culture, but there is no distinctive external ‘thing’ called culture that acts as an input to institutional behaviour. And why is culture so critical in this landscape?
Word-of-mouth and reviews (i.e. the crowd) have become increasingly influential in consumer decision-making.
Personal recommendations have been effective in driving attitudes towards a brand and purchasing behaviour, but social media has now magnified and intensified the power of these recommendations. The power of consumer reviews and positive word-of-mouth can help build and maintain trust in a company’s brand.
On the flip side, social media and the 24-hour news cycle mean that companies are increasingly held to account for any perception of poor behaviour. If they are not behaving in the right way, the crowd will let them know, if not the headlines – often with damaging effects on their brand and reputation.
Creating a sustainable business today is not only about the quality of the product or service that is delivered.
It is also about the quality of a firm’s conduct, both internally and externally.
If the culture and values of a business are not aligned with customer outcomes, it is easy to see how a trust deficit will emerge, and this will impact its long-term sustainability.

Credits:

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

Why is making a culturally appropriate Will + Digital Legacy Plan so important for Indigenous Australians: Aboriginal + Torres Strait Islanders?

Australian Intestacy Laws have not been drafted with any consideration of what is culturally appropriate for Indigenous Australians

In cases where no Will has been made, the relevant Australian Intestacy Laws have not been drafted with any consideration of what is culturally appropriate for an Aboriginal or Torres Strait Islander.

Therefore, the law can operate to create disharmony and disputes.

When a Will has is drafted for an Aboriginal or Torres Strait Islander it needs to be culturally appropriate.

Making a culturally appropriate Will can help to:

➲ Prevent burial disputes;

➲ Ensure the distribution of the estate is is accordance with the wishes of the deceased;

➲ Make sure young children are provided and looked after by a person approved of by the deceased;

➲ Protect customary law matters and help keep them secret; and

➲ Place limits on the use of the deceased's name, photograph or image after their death.

Digital Legacy Plan extremely helpful for Indigenous Australians

A Digital Legacy Plan comprised of Digital Asset Directions (used in combination with our Digital Safe Custody Vault) can be extremely helpful to the Executor of the Will of an Indigenous Australian in both protecting + keeping secret customary law matters, and placing limits on the use of the deceased's name, photograph or image after their death.

Cover Page: Aboriginal Wills Handbook

Source: Aboriginal Wills Handbook: A practical guide to making culturally appropriate Wills for Aboriginal People” by Prue Vines, 2nd edition [2015].

Note: The author of the Aboriginal Wills Handbook has waived copyright and any part of the handbook may be reproduced provided acknowledgement is made of this source.

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.

Which business visas will permit me to live in Australia as a non-resident whilst I startup or run an Australian business?

Which Visa do you need to Start and run a business in Australia as a non-resident?

Specific Business Visa

In order to start and run a business in Australia as a non-resident, a specific business visa will be necessary pursuant to Australia’s immigration law [1].

However, a nomination by a state or territory government is required.

How to be nominated:

1️⃣  An expression of interest must be submitted through the Department of Home Affairs’ SkillSelect website;

2️⃣  Wait or contact a state or territory government to enquire whether there has been an invite to apply for a visa; and

3️⃣  Apply for this visa only if there has been an invitation.

Business Innovation and Investment (Provisional) Visa (Subclass 188)[2]

This type of visa is suitable for non-residents wanting to set up and manage a new or existing business in Australia who have been nominated by a state or territory government agency to apply for the visa.

Business Talent (Permanent) Visa (Subclass 132)[3]

This type of visa is suitable for non-residents who have the required funding or assets and have been nominated by a state or territory government agency to apply for the visa.

Footnotes:

[1] ‘Start a business as a non-citizen’, Business.gov.au (Web Page, As at 24 June 2020);

[2] ‘Business Innovation and Investment (Provisional) Visa’, Immigration and citizenship (Web Page);

[3] ‘Business Talent (Permanent) Visa’, Immigration and citizenship (Web Page).

Credits:

The above summary of Australian Business Visa was prepared by Ivy San | 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.

What is Blue Ocean Strategy®?

6 Red Ocean Traps ➲ Mental Models that Undermine Market-Creating Strategies

What is Blue Ocean Law Group's ➲ Simple Marketing Promise?

Our simple marketing promise

“We offer memberships for individuals (who find less than $1 per day a compelling proposition) + businesses (who find the price of a cup of coffee circa $3.50 per day a compelling proposition) who want to join us on a journey where we guide + empower them using innovative + proactive solutions to safely navigate the hidden ice-bergs in life + business:
1️⃣ By taking care of their own legal affairs for straight-forward legal matters (whenever practical); and
2️⃣ Offering assistance from our legal team [supported by our network of collaborating law firms] as and when required for their complex or high-value/risk matters.
We promise that engaging with our free online 24/7 resources + [Self-Service] legal documents portal will help you get instant tailored legal documents (all Australian states + territories are covered) to serve your full range of personal + business needs using Embedded Lawyer-Logic™ designed by the best lawyers in the legal business.”

Credits:

Our Simple Marketing Promise was developed by our founder ➲ James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

The template used to develop our Simple Marketing Promise was obtained from the book “This is Marketing” by Seth Godin's Akimbo Workshops.

Who are our 3 tiers of Non-Clients? Why does Blue Ocean Law Group focus on them?

“Our law firm’s products + services are specifically designed for the large (85%) untapped Blue Ocean market represented by the 3-tiers of existing Non-Clients of the legal industry who:
1️⃣  Only use lawyers out of necessity and are constantly looking for a better alternative so they can jump ship;
2️⃣  Consciously do not seek legal advice or support + believe lawyers are to be or can be avoided, or they simply cannot afford them; or
3️⃣  Have not previously been recognised by the legal industry as potential clients.

For example:

Blue Ocean Law Group℠ offer Corporate Governance incl. Blue Ocean Strategy® services in additional to our innovative legal services to ➲ proactive clients.

The legal profession has traditionally been a reactive “clean-up the mess”, problem-solving industry which has not sought to add-value outside of narrow band of legal services.

3 tiers of Non-Clients:

The 3 tiers of Non-Clients is a strategy tool used within Blue Ocean Strategy® to help identify Blue Ocean markets.

In a nutshell, the basic idea is to take the time to observe + understand:

🧩 Who are not your clients?

🧩 Why they are not your clients?

Then focus on designing and delivering value innovation which is compelling to your Non-Clients.

This provides the potential for true innovation within your exisiting “business as usual” Red Ocean as well as the opportunity to open up unchartered Blue Ocean markets where you have no competition.

If you take the same old traditional approach of attempting to create innovation by focusing exclusively on your existing clients:

➲ You may find it more difficult to differentiate from your competitors and obtain the insights you need to open up new market space.

Further Reading:

"Blue Ocean Strategy Basics ➲ Non-customers: Blue Ocean non-customers aren't just new customers; they're a new type of customer.” by Michael Olenick posted in his Blog “Blue Ocean Thinking”.

The concluding paragraph of the article is extracted below [emphasis added]:

“The idea of non-customers is one of the most misunderstood components of blue ocean strategy. I’ve all too often seen it approached as a marketing strategy to loop in more customers or to poach customers from a competitor, which isn’t the idea at all.
Rather, the point of non-customers is to redefine the rules of the game, to change the boundaries of an industry in blue ocean terms and to make competition irrelevant.”

Credits:

This above description of our Non-Clients was developed using Blue Ocean Strategy® by our founder ➲ James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Blue Ocean Strategy® is developed & owned by W. Chan Kim + Renée Mauborgne Professors of Strategy at INSEAD, one of the world's top business schools, and co-directors of the INSEAD Blue Ocean Strategy Institute in Fontainebleau, France.

For 10 years straight, Kim + Mauborgne have been ranked in the top 5 management gurus in the world by Thinkers50.

What is your area of speciality? The Generalist v. Specialist Debate

A very frequent question

I am very frequently asked this question in conversations immediately after I reveal the fact that that I am a lawyer.

It appears that the presumption behind this question is that “All Lawyers Specialise”.

I do have some areas of law where I have more experience and a stronger grasp of the intimate details than in other areas of law.

Q: Does that mean I am a specialist in these areas of law?

A: Not really.

The Law Societies are all clear and in agreement on this point

Unless you are a Certified Specialist you should not hold out to the public that you are a specialist.

Doing so is likely to mislead the public.

Deep Generalist

My personal preference not to specialise in any one area of the law.

This makes my practice of law much more difficult and at the same time, much more interesting.

My aim is to be a Deep Generalist.

Complex Legal Problems

What I tend to find is that legal problems have a tendency to become increasingly complex and rarely fit into a neat one size fits all category.

This means that having a generalist perspective can more effectively identify alternate legal issues + causes of action and take a broader view of the matter.

As long as this is done in collaboration with the relevant specialists (where appropriate + necessary) this approach appears to work extremely well and obtains the best possible results for our clients

In all seriousness, we can't all know everything

Generalist ➲ a person who knows less and less about more and more until finally he knows nothing about everything …

Specialist ➲ a person who knows more and more about less and less until finally he knows everything about nothing …

Taken from an interview by John Farquharson with Chester Porter QC in the Law in Australian Society Oral History Project.
[August 1-2, 2001]

What is a Deep Generalist?

From Andrew Sobel’s website:

"Who mentioned the concept of the “deep generalist” to me?
It was leadership authority and best-selling author Warren Bennis.
Bennis virtually invented the leadership book genre in the 1980s.”

He told me in a conversation:

“The professionals who develop into really great client advisors are deep generalists.
They develop a unique blend of knowledge depth and knowledge breadth.”

Deep generalists are:

➲ able to make knowledge connections that narrow specialists cannot make;

➲ good at synthesis not just analysis;

➲ very effective at putting their products and services—and the benefits they deliver—in the context of the client’s overall business goals and strategy;

➲ more interesting to C-Suite executives than narrow specialists; and

➲ tend to be better conversationalists over dinner.

If you are interested to find out more …

I have created a SmartList dedicated to this topic called: The Generalist v Specialist Debate ➲ SmartList

Credits:

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

What lies ahead for the future of the Legal Profession?

To answer this question I refer you to my article Charting the future of the Legal Profession: A Blue Ocean Perspective which was published in the Legal Business World Magazine Xmas 2018 Edition.

LBW Article Cover page

Since that time [circa 3 years ago] I posted the following update on LinkedIn:

Today I am reflecting on the past 12+ months since my article was published in the International Xmas 2018 edition of LegalBusinessWorld.

Q: How much has the Australian legal profession actually changed?

A: The report published by Alpha Creates on the State of legal innovation in the Australian market [2019] is a great benchmark summary.

The focus continues to be on structural + business model change (M&A, geographic expansion, increased NewLaw entrants incl. Legal Tech startups + NewLaw skunkworks spun off by BigLaw to complete in this space, Big4 increasing their presence).

Q: How successful is the idea of publishing the article as a hybrid mix of text + online content [Smart Lists]?

A: Whilst the article itself remains "as published", the Smart Lists linked to it have been + continue to be updated as new relevant + interesting content is created/discovered.

Our Master Smart List has now [as at October 2021] exceeded 48,000 views (well over quadruple the number at the time the article was published).

[Update as at 21 Oct 2021: > 48,000]

These are organic views with no $$ spent on promotion.

Credits:

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

Have you done any podcast style interviews?

Yes, I was interviewed on the Beyond Billables Podcast on Aug 24, 2017 shortly after launching Blue Ocean Law Group℠.

James Ford on Blue Oceans and Innovative Value Creation

Below is a summary of the podcast extracted from the BB website:

Interested in innovative approaches to legal practice?

Want to know what a ‘hybrid’ lawyer is?

Keen to hear a new spin on delivering value?

Today’s guest on the Beyond Billables Podcast, James Ford, has cleverly utilised information technology to create a cross-disciplinary team, to help lawyers with their business strategy and ultimately, help them to chart new markets.

All of these points are touched on (plus much more) as we meander through James’s career.

James is a lawyer, and the founder and CEO of Blue Ocean Law Group.

Coming from a background as a developer with experience in property law James cross – germinated some fresh ideas with his business skills and prior experiences to create the Blue Ocean Law Group.

In our conversation, we went into depth on the hows and whys of Blue Ocean.

But we also saved a bit of time to talk about how James manages work-life balance as the founder of a startup.

Listen to the full podcast to gain insight into more of the above, as well as:
  • What is the Blue Ocean Strategy and why was it important to James?
  • The benefits of approaching the law with other experiences/skill sets;
  • How Blue Ocean Law Group works?, how it provides value?
  • How Blue Ocean Law Group help their clients and lawyers with their business strategy and ultimately, help them to chart new markets?
  • Why it’s important for lawyers to work together? even if oftentimes they don’t;
  • James’ best advice for a law school graduate (or someone early in their career);
  • Why positive client feedback is so critical to growing your practice (or any business);
  • Why you should not peacock yourself!
  • Dealing with the skepticism that some people have of new law models;
  • How to develop client management skills and approach sticky conversations;
  • The value in knowing and addressing client pain points;
  • Trying to break the archaic mold of law firms and how they present themselves;
  • The Blue Ocean’s take on other law firms;
  • The importance of flexibility and fitness in maintaining a good life.

Click ➲ here to access the complete interview.

Click ➲ here to listen to other great podcasts from our specially curated SmartList of favourite Legal + Business Podcasts.

Credits:

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

What is the difference between per stirpes v. per capita estate distribution?

Per Stirpes = by branch = by the bloodline

Per stirpes means “by branch” in Latin, but is commonly understood to mean “by the bloodline.”

If your estate is distributed per stirpes after your death, each branch of your family will receive an equal share of your estate.

Per Stirpes ➲ Example

Imagine that Amy has three children: Brigid, Charles, and David.

At Amy’s death, all three children will receive one third of Amy’s estate ➲ if her estate was set up to pass per stirpes.

Assume that Brigid predeceased Amy, and that Brigid has two children, Eleanor and Fergus.

Now at Amy’s death, Charles and David will still receive one third of the Amy’s estate.

Eleanor and Fergus will each share in what would have been Brigid’s share, so both Eleanor and Fergus will take one sixth of Amy’s estate.

per stipes graphic
Source of example: Trust Company Oklahoma

Per Stirpes v. Per Capita

These legacy latin legal terms, whilst initially confusing, are very important and can change your childrens' (+ their heirs') inheritance.

The alternative to "per stirpes" is "per capita".

With "per capita" the share of any child beneficiary who dies before you is shared equally among your surviving children ... which means your predeceased child (and consequently, their heirs) would lose their share.

With "per stirpes", in the same scenario, instead of your predeceased child losing their share, it is preserved for their children (if any).

Additional Note:

If the term "per capita by representation" is used (also known as modern per stirpes, American per stirpes), please note that this changes the result of the “per capita" distribution so that it operates the same way as the traditional "per stirpes" distribution described above.

The use of this legal term invokes the concept of a “right of representation”.

This means the heirs of any child beneficiary who predeceases you have the right to representation so they can collect the property originally-intended to go to any predeceasing child beneficiary, so they don't lose their share.

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.

More than 1000+ Australian Lawyers use Embedded Lawyer-Logic. How does it work?

More than 1000+ Australian lawyers use this industry leading automated legal document generation solution. It uses Embedded Lawyer-Logic™ designed by leading lawyers in their respective fields.

Step 1️⃣: Information Gathering

Our intelligent online questionnaire adapts to your answers and only asks relevant questions.

Simply follow the guidance and enter the requested information about your matter.

Step 2️⃣: Document Assembly

The information is then sent to our back-end legal document generation engine, which follows a matrix of algorithms to make decisions about what should be in your legal document, just as an expert human lawyer would do.

The engine then draws from an enormous body of content to assemble a top-tier quality legal document that’s tailored to your situation + requirements.

Our Embedded Lawyer-Logic™ technology includes numerous quality control checks + automatic error-correction, massively reducing the risk of human error.

Step 3️⃣: Document Delivery

The finished document is then emailed to you in PDF format, ready to print and sign.

Optional: Lawyer Review/Assistance

Your answers to the online questionnaire and a copy of the finished document in both Word + PDF formats are automatically forwarded to our legal team.

If we notice anything out of-the-ordinary we will contact you to discuss.

If you are a subscribed member or opt for paid Lawyer-Assistance, we will use the allocated time to assist to clarify and resolve any questions you may have.

Optional: Full Service

If your matter is complex, high risk or you have never been involved in legal matters before, we highly recommend you opt for our Full Service.

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Credits:

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

What can the trustee of a Charitable Trust or the Executor of a Will do if they are unable to give effect to the intended charitable purposes?

What is a Charitable Trust?

A Charitable Trust can be defined as:

“A purpose trust that is directed to exclusively charitable purposes [1] and that exhibits public benefit [2]"

Charitable Trusts need not have any vesting date, and may exist in perpetuity

A trust is a Charitable Trust when it is established for charitable purposes (objects), which can be quite general (for example for the relief of poverty) or highly specific (for example the construction of a hospital to treat + conduct cancer research).

For many reasons, especially given the potentially infinite life-span of a Charitable Trusts, it may well find itself with insufficient funds to achieve it's stated charitable purposes.

If the Charitable Trust has been set up by an experienced lawyer, the trustee of the Charitable Trust will have an express power of amendment to alter the terms such that it's objectives match it's restated charitable purposes.

The Court may use its discretion to grant Cy Pres

If this is not the case, the trustee of a Charitable Trust is under an obligation to apply to the Court for an Order to enable property to be applied Cy Pres, or be at risk of personal liability by acting in breach of trust.

In much the same way, the Executor of a Will may find themselves in a similar situation, where the estate is not sufficient to give effect to the Willmaker's charitable gift, or simply because the nominated charity no longer exists, or there is more than one charity to select from because the Will has not been specific enough when naming the charity [3].

Cy Pres (pronounced “Sigh Pray”) is a phrase adopted from the French meaning, “as near as possible” to the original intention.

The Court will take account of all the facts and circumstances, and if they can determine that the gift was made with a general charitable intent, they may exercise their discretion to make appropriate Cy Pres orders.

Footnotes:

[1] Leahy v A-G (NSW) (1959) 101 CLR 611.

[2] Attorney-General (NSW) v Perpetual Trustee Co Ltd (1940) 63 CLR 209).” (Encyclopaedic Australian Legal Dictionary, Lexis Advance).

[3] Estate of Polykarpou; Re a Charity [2016] NSWSC 409

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 an existing Trust be a beneficiary under my Will?

Yes, a Will can nominate an existing trust as a beneficiary

A person can leave assets under their Will to the trustees of a trust already in existence, such as a family/discretionary trust, unit trust or charitable trust.

These are collectively known as ‘inter vivos’ trusts.

In the USA, a Will devising all or part of the estate to the trustee of an existing inter vivos trust is called a Pour-Over Will.

For the gift to be valid in Australia, however, it is necessary that the disposition would not be considered a ‘delegation of testamentary power’.

What is a delegation of testamentary power?

A delegation of testamentary power is when the person making the Will (‘the testator’) gives another person the power to decide how to dispose of their estate.

Such delegations are barred by the High Court due to their decision in the case of Tatham v Huxtable (1950) 81 CLR 39, where the Court stated that:

“[i]t is a cardinal rule… that a man may not delegate his testamentary power”.

Given that trusts often have a range of beneficiaries, there is scope for argument that a gift to an inter vivos trust by a testator is effectively passing on the decision-making power for who shall ultimately benefit from the estate.

When is gifting assets to a trust under a Will not considered a delegation of testamentary power?

Each case will be assessed on its own facts and circumstances.

Examples where the gift to an existing trust is not deemed a delegation

1️⃣ Despite the above rule, section 33R of the Succession Act 1981 (Qld) states that a trust or power (created by a Will) to dispose of property is not void, if the same power or trust would be valid if the testator had made it during their lifetime.

This is especially the case if it is easy to determine with certainty who or what class of people are intended to benefit from the trust in question.

2️⃣ In the case of Gregory v Hudson [1997] NSWSC 140, the Court determined that the deceased’s gifting of his entire estate to the trustee of a family trust for the benefit of his family was valid.

In this case, the deceased chose this method so that the independent trustees would make distributions according to each beneficiaries’ individual needs, without being influenced by the tense blended familial relations.

What are the advantages of leaving a gift to an inter vivos trust?

Potential Tax Advantages

The main advantage of leaving a testamentary gift to a trust is to ensure that that gift is not deprived of the benefit of the concessions found in s 102AG of the Income Tax Assessment Act 1936 (Cth).

If the trust deed permits the trustees to accept “excepted trust property” and the trustees hold this property separately from other trust assets, minors may receive distributions from the trust generated by the separately held trust assets, whilst being taxed at the normal marginal tax rate on those distributions.

This is very different from the rate at which distributions to minors from an inter vivos trust are usually taxed – which can be up to the maximum marginal rate of tax.

Concerns regarding legal mental capacity to understand a complex WIll (incl. a Testamentary Trust)

A gift to an inter vivos trust may also be advantageous if there are concerns regarding the testator’s legal mental capacity to understand a complex Will incorporating testamentary trust/s where the benefits of a trust are still desirable.

In this case, a gift to an existing trust is a much shorter and more straightforward Will to understand, effectively lowering the hurdle that needs to be cleared to establish a valid Will.

What are the disadvantages of leaving a gift to an inter vivos trust?

The main disadvantage is the risk that the trust deed may contain express terms which do not allow for the testator’s wishes to be effectively carried out.

There may be express terms in the trust deed preventing distributions being made to certain beneficiaries, or such distributions may only be permissible with the consent of a third party.

For this reason it is important that the trust deed is reviewed by a lawyer to determine whether any such restrictions exist.

If restrictions are identified, these may be capable of being removed while the testator is still alive so that their testamentary intentions are not defeated.

Trusts in Australia

Unless the Will was prepared recently, there is also the risk that naturally arises due to the passage of time.

Generally Trusts in Australia have a maximum life of 80 years (except Charitable Trusts which can exist in perpetuity and Trusts from South Australia where the Rule against Perpetuities has been repealed).

Thus, if the trust has already been operating for a number of years it may only be capable of existing for a short time after the testator’s death (or may, in fact, have already vested, that is, the Trust may have automatically terminated by reaching its own expressly nominated expiration date).

After the Will is executed, it is also possible that the trust's circumstances may have changed such that it is no longer appropriate to receive the gift.

For example: The trust may have exposed itself to an unforeseen risk, or the control of the trust or the members of the beneficiary classes may have changed.

It is also very easy for the trustee to lose the tax advantages provided by the s 102AG concessions by accidentally mixing capital or income and therefore potentially defeating the testator’s intentions, and potentially triggering anti-avoidance tax laws.

Conclusion

In summary, the potential disadvantages of using a Will to gift assets to an existing inter vivos trust far outweigh the potential advantages.

It is preferable (assuming the requisite mental legal capacity) to draft a new Testamentary Trust(s) into the terms of the Will.

Using a new Testamentary Trust ensure the trust will:

1️⃣ Be created in accordance with the testator’s wishes;

2️⃣ Is unaffected by external factors and other risks due to the passage of time;

3️⃣ Avoids concerns regarding early vesting; and

4️⃣ Is less likely to inadvertently trigger anti-avoidance tax laws.

Therefore, unless there are concerns regarding clearing the hurdle of the legal mental capacity required for a complex Will, we highly recommend the use of Testamentary Trusts as the default trust structure used in estate planning.

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 the maximum life of a Trust in Australia?

Trusts in Australia have a maximum life of 80 years (except in South Australia^)

Any trust that purports or attempts to last for a longer period is void.

An exception exists for Charitable Trusts created with charitable objects or purposes which can endure forever.

Notes: ^ s62. of the Law of Property Act 1936 (SA) may be used by prescribed interested parties to apply to the Court for orders forcing the South Australian Trust to vest within 80 years.

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.

How do I best provide for the emergency care of my pet/s?

First things first!

Emergency Care for your Pet/s

✅ Complete your Petcare Plan

You know your Pet/s best.

By completing a detailed Petcare Plan for each of your Pets, you will be providing your emergency or longer-term carer with essential information which will improve your Pet's quality of life when you are not there.

You will need to include important details such as your Pet/s:

➲ Name;

➲ Breed;

➲ Age;

➲ Likes, Dislikes, Special Treats, Favourite Toys;

➲ As much detail as possible about everything really: personality, inside/outside, anxieties, phobias, typical daily routine; etc.

➲ Vet's Contact Details;

➲ Microchip Details, Medical History + Routine [desexed, vaccinations, etc.]; and

➲ Pet Insurance Details, Policy Number, etc.

Ensure you leave a copy of your Petcare Plan with your:

➲ Emergency contact/s;

➲ Enduring Power of Attorney [EPOA];

➲ Executor/s of your Will;

➲ Estate planning paperwork; and

➲ Vet for safekeeping.

✅ If you become sick or injured …

If you live in NSW:

You can sign up for a free "My Pet is home alone" card which you can carry with you at all times in your wallet or with your medications list or medications (if applicable).

The card specifies the name and breed of your pet/s, and provides emergency contact details, as well as your Vet's phone number.

You can request a free card from the NSW Trustee + Guardian here.

Sample: NSW Trustee & Guardian Complimentary Emergency “My Pet is Home Alone Card”

If you live in the ACT:

Pets and Positive Ageing ACT has produced a Pet Emergency Card which can be carried in your wallet to provide instructions on who can care for your pet should something happen to you.

Please contact us if you would like one posted to your address.

Sample: Pets and Positive Ageing ACT developed this card which they hope vets wil start to distribute from their surgeries.

If you live elsewhere in Australia:

Be on the lookout as other States may have, or may soon introduce similar Pet Emergency Card schemes.

Another example is the Animal Alert Card produced by the Animal Justice Party.

You can obtain one from its stall at public markets or by writing to the party.

Sample: A great idea from the Animal Justice Party to help take the anxiety away when people leave their pets at home alone.

Further Reading:

For a more detailed discussion please refer to our blog article “Your Pets are Family: Providing Emergency + Long-Term Care for your Furry, Fluffy or Fine-Feathered Friends!"  by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

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.

How do I best provide for the care of my Pet/s if I lose capacity?

Long-term Care for your Pet/s …

✅ If you lose capacity

Formal Arrangements

Plan A ➲ EPOA

Ensure you are able to keep your Pet/s with you [as long as possible] by providing specific written directions ahead of time and including financial provision for the support of yourself, your Pet/s long-term care, maintenance, health + insurance + potentially your Pet/s carer in your Enduring Power of Attorney [EPOA] / NT Advance Person Plan.

Informal Arrangements

Plan B ➲ Friends or Family

Plan C ➲ RSPCA

Think of setting up an informal arrangement with the RSPCA as an Insurance Policy just in case for some reason your friends or family circumstances change and they are no longer in a suitable position to take on the responsibility for long-term care of your Pet/s.

RSPCA Home Ever After / Pet Bequest / Pet Legacy program

Further Reading:

For a more detailed discussion please refer to our blog article “Your Pets are Family: Providing Emergency + Long-Term Care for your Furry, Fluffy or Fine-Feathered Friends!"  by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

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.

How do I best provide for the long-term care of my Pet/s in my Will?

Long-term Care for your Pet/s …

✅ If you pre-decease your Pet/s …

Formal Arrangements

What do you need to understand in terms of your Will?

❌ You cannot name your Pet/s as direct beneficiaries in your Will.

❌ For clarity, you cannot include statements in you Will such as “I give $X to my cat Toby".

❌ Legally a pet is regarded as your property. That is, as one of your possessions.

❌ Pet/s are not legally recognised as a ‘person’ under the law.

❌ This means they cannot own property, hold a bank account, sue or be sued, or in this case, receive a gift as a beneficiary directly under a Will.

There are different approaches to providing for your Pet/s in your Will

The approach to take will depend on your personal circumstances, what you prefer for your Pet/s, and their needs.  

Some simple + valid options to consider for the long-term care of your Pet/s under your Will are as follows.  

✅ You can make a gift of your Pet/s to a trusted family member, after you have discussed it with them and they have agreed to take on the responsibility.

✅ Provide for an alternative, Plan B, trusted friend or family member, just in case.

✅ In addition, it would be wise to give a sum of money (legacy) in your Will to the actual recipient of your Pet/s to cover your conservative estimate of your Pet/s lifetime reasonable living, maintenance and anticipated healthcare costs based on your experience.

✅ Alternatively you could gift your Pet/s to a registered pet charity, rescue charity or pet shelter such as the RSPCA to be re-homed or adopted by another pet-lover.

✅ Ensure you get the name of the charity or shelter 100% correct, and provide for an alternative as a backup just in case.

✅ If you have more than one Pet, consider whether you want them kept together.

✅ Clearly communicate everything to your Executor/s so they can work quickly to ensure your Pet/s are kept as safe and comfortable as possible at a time which will be difficult for them as well as for all concerned.

Testamentary Pet Trust
[Legal Assistance Highly Recommended]

✅  Alternatively, you can establish a Testamentary Pet Trust for the care and maintenance of your Pet/s during their lifetime.

✅  Under such arrangements the trustee holds the money for the benefit of the named Pet/s.  

✅  When the Pet/s die, the trust is wound up and distributed according to the directions made in the Will, which might be to an animal charity or elsewhere.

✅  While this approach provides increased certainty that your allocated funds will be devoted to the long-term care of your Pet/s, it is also more costly to administer.  

✅  Choice of trustee is important.

✅  Someone trusted to carry out the terms of your trust, preferably independent and experienced, needs to be appointed in the Will as trustee for this purpose.

Some Pets can live up to 100 years or more …

Certain species of animals like turtles, koi fish + birds (e.g., parrots) can live up to 100 years or more.  

❌ In most state and territories of Australia (except South Australia) the life of a Trust is a maximum 80 years;

✅ if your Pet/s could outlive the useful life of the Testamentary Pet Trust, it becomes crucial that you seek legal advice in order to create a specific plan for what is to occur if your Pet/s outlive the Trust established for its long-term care.

Don't give your Pets more than they need!

❌ Any gift well in excess of your Pet/s actual needs, opens the door to the possibility that your Will might be challenged by eligible beneficiaries.

NSW Case example[1]: Left everything to the RSPCA + had children who were eligible to make a family provision claim

No Pets were involved.

The Will disinherited eligible beneficiaries, instead giving everything to the RSPCA.

Mr. Simpson left his entire estate via his Will to his second wife, and in the alternative should she pre-decease him, to the RSPCA.  

Nothing was left to his three children from his first marriage.

As it transpired, his second wife pre-deceased him, so everything went to the RSPCA.  

The estate after sales of all estate property amounted to a total of $397,453.58 in cash.

The three children from Mr. Simpson's first marriage successfully contested the Will under family provision legislation and were awarded 40% of the estate after legal costs.

❌ Leaving everything to an animal charity (or any other charity) is not wise where there are children, family and others who may be eligible to make a family provision claim on your estate.

❌ The wasted legal costs paid out of the estates in this case were circa $50,000.

What if you make no special arrangements for your Pet/s?

Your pets are your property so if you make a Will and don’t make any specific arrangements for them, they will form part of your residuary estate.

Whoever you have designated to inherit the residue of your estate will then be entitled to take ownership of your Pet/s.  

If you have not spoken to your residuary beneficiaries, it may be unclear which beneficiary is to take care of which Pet/s.

❌ It is not difficult to foresee the potential for further disputes arising!

Companion Animal Law Guide: 2nd Edition

➲ Compiled by the Young Lawyers, Animal Law Committee of the Law Society of NSW

Hard copies can be found in the NSW State + Local Libraries or you can view/download the online guide via the Resource Link provided at the following State Library of NSW webpage: Companion Animal Law Guide New South Wales.  

Footnotes:
[1]. Marshall & Ors v Redford [2001] NSWSC 763

Further Reading:

For a more detailed discussion please refer to our blog article “Your Pets are Family: Providing Emergency + Long-Term Care for your Furry, Fluffy or Fine-Feathered Friends!"  by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

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 Values Represent the Culture at Blue Ocean Law Group?

Using our Values to Shape our Culture

Being a start-up, Blue Ocean Law Group's culture is still evolving.

Our culture is being shaped by our values and what we actually do versus what is supposed to happen!

Please find our current list of values (not in any particular order of importance) below:

Blue Cow!

"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!

Our goal is to be truly remarkable in everything we do."

Delivering a Remarkable Client Experience

In line with our goal of being truly remarkable, in everything we do.
Our way of gauging our level of success in achieving our goal is to have our client's "remark positively" about their interactions with us + highly recommending our services to others.

Sustainability ➲ Paperless Law Firm

Unless we are forced to use paper by law (for eg., some Courts require hard copy filings) our standard approach is to continue our efforts to run as close as possible to being a 100% paperless law firm.

Blue Ocean Leadership

"We never cease to be amazed by the talent and energy we see in the organisations we study.
Sadly, we are equally amazed by how much of it is squandered by poor leadership.
Blue Ocean Leadership can help put an end to that."

Our simple marketing promise

Created from the template provided in the book “This is Marketing” by Seth Godin."

“Our law firm’s products + services are for the large (85%) untapped market of non-clients who do not currently seek legal advice or support + currently believe lawyers are to be or can be avoided,
We will focus on individuals + businesses who want to take care of their own legal affairs for straight-forward legal matters (whenever practical).
Our legal team [with support from our network of collaborating law firms] will provide support as and when required when matters become complex or are high-value/risk.
We promise that engaging with our online 24/7 [Self-Service] legal documents portal will help you create instant tailored legal documents (all Australian states + territories are covered) to serve your full range of personal + business needs using Embedded Lawyer-Logic™ designed by the best lawyers in the legal business.”

Attention to Detail

It may only be a minor typo … yet it can cause a major loss of confidence in the written content as well as the author and the organisation they represent.

Tips: If the matter is not urgent + you are not in a position to have someone else review:

✅ It is highly recommended to use software like Grammarly;

✅ Wait a few hours or even better “sleep on it” and take a fresh look the next day; and

✅ Learning about typography and using it to polish the work further is often overlooked by lawyers and other professionals.

Proactivity

Don’t wait for permission … get started with what you can do within your existing “approved” bailiwick.

Cognitive Diversity

Difference of opinion is highly valued and necessary to avoid “Group-think”!

Value-Innovation” Focused

You will need to research this concept within Blue Ocean Strategy®.

The Principles of Fair Process: Engagement, Explanation, and Expectation clarity

We cannot overstate the power of these principles.

Their impact has been written about extensively on the quality of execution for over 20 years.

See, for example, our article “Fair Process: Managing in the Knowledge Economy,” HBR July–August 1997.

See also this summary.

Collaboration

Within + across traditional boundaries.

CyberSecurity

We need to conduct ourselves in such a way that we are un - hack -  a -  bull!

See details below under Risk Management, Preventable Risks.

Step 1: Free Cybersecurity Awareness Training

Meritocracy

A system in which advancement is based on individual ability or achievement.

Adaptability

Nothing is static; look to challenge our approach + assumptions.

Have Fun

Professionalism + fun are not mutually exclusive concepts.

Curiosity

Follow your interest and see where it leads.  

Not everything you do needs to be a billable hour.  

We schedule unproductive time devoted to exploring!

Cross-disciplinary

Clients don’t just have legal needs they have corporate governance (incl. strategy + ongoing risk management) + “business as usual” needs.

Launch First

Don’t wait until your product or service is perfect before launching.

Follow the LEAN Start-up approach.

Fight the good fight

Look for opportunities to put our skills as lawyers to fair use on a “pro-bono” basis or lobbying for law reform (if appropriate).

Credits:

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

What constitutes "Hardship Notice" under the National Credit Code?

Hardship Notice

72 Changes on Ground of Hardship
(1) If a debtor considers that he or she is or will be unable to meet his or her obligations under a credit contract, the debtor may give the credit provider notice (a hardship notice), orally or in writing, of the debtor’s inability to meet the obligations.

As per s 72 (above) of the National Credit Code 2009 (Cth), a debtor who thinks they will be unable to meet their obligations under a credit contract can give notice to the creditor of their inability.

This notice can be given either orally or in writing.

When giving notice, the debtor is not obliged to frame the notice in a certain way, or to make use of a certain form, though it remains up for debate as to whether the words "hardship" or "hardship notice" have to be used for a debtor to properly give s 72 notice of hardship (see RHG Mortgage Corp Ltd v Saunders [2016] below).

The bar for giving notice has reduced somewhat since 16 May 2013, prior to which the debtor seeking to notice had to specify one of three ways in which they sought to have the credit contract changed.

Since the 2013 amendments, the debtor is no longer obliged to first propose how the credit contract should be changed.

It would now appear that a debtor need only give notice to the creditor, at which point it is now the creditor's duty to either:

1️⃣ Request further information from the debtor (including how the credit contract should be changed); or

2️⃣ If the debtor requested specific changes when putting the creditor on notice in the first place, to return to the debtor with a verdict as to whether the creditor has or has not agreed to the changes proposed.

The creditor must take do one of the above actions within 21 days of receiving the initial hardship notice from the debtor.

Failure to do so attracts a civil penalty for the creditor.

RHG Mortgage Corp Ltd v Saunders [2016] NSWSC 1037

Had the substantive issues in this matter been heard, perhaps it would have provided some precedent as to whether a debtor needs to use the word "hardship" to put a creditor on notice of hardship, or whether other words to the equivalent are sufficient.

Unfortunately, it would appear as though the matter settled after a couple of interlocutory hearings.

Nonetheless, Garling J. suggested here that the latter position (words equivalent hardship are sufficient) may well be an arguable position, though he went no further as to the merits of this argument, as it did not fall for determination.

Perhaps this suggestion could provide the basis for a future legal challenge?

Implied Hardship Notice?

What happens if I haven't given notice? Is there such a thing as an implied hardship notice?

The legislation mentions nothing of circumstances in which a creditor might be impliedly put on notice as to a debtor's hardship. As such, it would appear difficult to imagine a situation where a creditor might be impliedly put on notice of hardship.

The 2013 amendments to the National Credit Code 2009 (Cth) appears to have had the effect of reducing the task of the debtor to expressly put a creditor on hardship notice.

Even if the debtor offers no further information as to the circumstances of hardship or how they would like the credit contract amended, the onus is on the credit provider to request that information from the debtor once the debtor has given effective notice under s 72(1).

Whilst it is dangerous to make assumptions about the operation of the law, it seems unlikely that any court would read into the National Credit Code 2009 (Cth) the existence of an implied hardship notice.

The matter has not been brought before the courts, and as such, there is no guidance from case law.

Besides, the importance of time is well established in s 72.

It constitutes a breach of the law, amounting to 5000 civil penalty units, for a creditor to fail to return to the debtor with a verdict within the relevant time frame.

Given time is of the essence, an implied hardship notice is unlikely to sit well with the law here, as it is difficult to place a time regarding when notice may be said to have been given, where it may be given tacitly.

Is it too late for me to make / give Notice of Hardship?

Enforcement Proceedings and s 89A of the National Credit Code

From s 89A of the National Credit Code 2009 (Cth), it is evident that a debtor may make give notice of hardship even after a creditor has given the debtor a default notice.

89A Effect of hardship notices on enforcement
(1) This section applies if ...
(b) before or after the credit provider gives the default notice, the debtor gives the credit provider a hardship notice (the current hardship notice) under section 72; and

The effect of s 89A is to prevent creditors from initiating enforcement proceedings until 14 days after the creditor has responded to the hardship notice. Besides this, it affords a debtor the opportunity to give hardship notice to a creditor even after default.

Best case scenario, a creditor, upon examination of the debtor's circumstances, may consider that changing the credit contract as favourable over enforcement proceedings.

RHG Mortgage Corporation Ltd v Sava [2011] QSC 372

It would appear possible to give notice of hardship even subsequent to the commencement of enforcement proceedings. Atkinson J here notes that a judge hearing the matter previously adjourned the matter to allow the defendant to give a hardship notice to the creditor:

"Because there has not been any complying application, the obligations which inhere in the credit provider under s 72 (3) have not arisen.
This matter came to court on a previous occasion and it appears that the Judge hearing it adjourned it to allow Mr Sava, the defendant, to obtain legal advice with regard to making a complying application for hardship to the mortgagee/plaintiff or to the court under s 74" per Atkinson J.

Outside Options?

For a debtor unable to rely on the provisions relating to hardship notices, a debtor may consider making a claim on s 76, should it be possible to construe the terms of the credit contract as unfair in some way:

76 Court may reopen unjust transactions
(1) The court may, if satisfied on the application of a debtor, mortgagor or guarantor that, in the circumstances relating to the relevant credit contract, mortgage or guarantee at the time it was entered into or changed (whether or not by agreement), the contract, mortgage or guarantee or change was unjust, reopen the transaction that gave rise to the contract, mortgage or guarantee or change.

Credits:

The above overview of the law pertaining to Hardship Notices under the National Credit Code was prepared by Suk Jae Chung | Practical Legal Training (PLT) Placement, 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 you need to seriously consider Title Insurance for all your existing or newly acquired properties?

What is Title Insurance?

For an initial up-front fee (no annual premiums + no excess on claims) Title Insurance provides coverage for unknown risks which could impact your home, strata apartment, vacant land, rural-residential, +/or commercial property for the entire period of your ownership of the property.

Title Insurance can be purchased at anytime, before or after you acquire the property.

While Title Insurance is common in the United States, it's still a relatively new product to the Australian market.

Title Insurance also protects you from risks that may arise in the future, such as forgery +/or fraud, encroachments and unregistered easements on your property.

Who offers Title Insurance in Australia?

There are only two Title Insurance companies in Australia: First Title and Stewart Title Limited.

Note: Insurance premiums are subject to change at anytime, please contact us to organise accurate quotes.

The premiums provided below are provided as examples only in order to give an indication of the quantum involved in securing this kind of insurance coverage.

These amounts do not reflect nor are in anyway represented as current premium prices.

First Title

First Title quotes its policies from $225 (one-time fee) for strata properties and from $300 (one-time fee) for standard residential properties.

Stewart Title

Stewart Title quotes its premiums specific to the state or territory in which the property resides.

For example: NSW residential Title Insurance premiums start at $330 while premiums for strata titles start at $247.50.

The premium (including stamp duty and GST) for a $500,000 property is around $500, and for a $750,000 is around $625.

Explainer Video: Boundary & Survey Defects Example

"What isn’t covered by Title Insurance?
Like all insurance policies, Title Insurance policies will contain a number of exclusions.
You will need to read these carefully and take legal advice about their meaning before deciding whether Title Insurance is for you.
It is especially important to understand that title insurance policies do NOT provide cover in respect of destruction of or damage to a building on your land – title insurance is not the same as, or a substitute for, home building or home contents insurance.
Common exclusions (i.e. things NOT covered) in the policies we have seen include:
❌ Dilapidation or pest infestation of buildings;
❌ Buildings that fail to comply with proper building standards e.g. the Building Code of Australia;
❌ Environmental contamination;
❌ Things that are known to you at the date your purchase of the land settles (for example, it is already contained in the contract of sale as a known issue)."

The above topic "What isn't covered by Title Insurance" was extracted from the Financial Rights Legal Centre - Insurance Law Service Factsheet regarding Title Insurance.

What does Title Insurance cover?

Title insurance covers different risks depending on the type of property being insured.

Existing Residential Homeowner:

✅ Illegal building work;

✅ Title defects and planning errors;

✅ Fraud and forgery; and

✅ Survey and boundary defects.

Residential Home Buyer:

✅ Title defects and planning errors;

✅ Illegal additions and building work;

✅ Outstanding council rates and water rates;

✅ Non-compliance with existing zoning and planning laws;

✅ Third-party claims on the land;

✅ Registration gaps;

✅ Fraud and forgery; and

✅ Survey and boundary defects.

Residential Strata Buyer:

✅ Unapproved alterations;

✅ Outstanding council rates and water rates;

✅ Registration gaps;

✅ Fraud and forgery;

✅ Title defects and planning errors; and

✅ Unmarketability of title due to existence of a covered title risk.

Vacant Land:

✅ Incorrect boundaries;

✅ Planning and zoning;

✅ Encroaching structures built on your land;

✅ Errors on property searches and enquiries;

✅ Adjustment of taxes and various land charges; and

✅ Fraud.

Rural-Residential Buyer:

✅ Unapproved building works;

✅ Incorrect boundaries;

✅ Encroaching structures built on your land;

✅ Errors on property searches and enquiries;

✅ Adjustment of taxes and various land charges; and

✅ Fraud.

Commercial Property Buyer:

✅ Unapproved building works;

✅ Encroaching structures built on your land;

✅ Taxes, charges and levies;

✅ Legal right of access; and

✅ Competing interest claims.

Credits:

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

Disclosure: Blue Ocean Law Group℠ is an authorised representative of both First Title + Stewart Title.

We may be paid a commission as an affiliate to compensate for the work involved in obtaining quotes + preparing & submitting an application on your behalf as part of the conveyancing process or after acquisition if you were not offered Title Insurance by your lawyer/conveyancer at the time you purchased your property.

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 legal rights do I have if my neighbour/s are creating a Nuisance?

Nuisance

"The essence of the tort of nuisance is interference with the enjoyment of land".
- RP Balkin; JLR Davis. “Law of Torts 5th Edition.”

When the word nuisance is brought up in colloquial use, we think first of some form of bother or annoyance coming from somewhere. The nuisance is to me, to my person; my neighbour practicing the saxophone at midnight, or the smell coming from a nearby stable, are nuisances, as the noise / smell is offensive to me.

But the way the law sees it, at least with regards to private nuisance, for any action for the tort of nuisance to be actionable (meaning: to have legal grounds for suit), the plaintiff must have an interest in land, first and foremost. A nuisance (according to the law) occurs when an annoyance or bother interferes with my enjoyment of my land, not merely when I have been annoyed or bothered without any connection to land.

In practical terms, this means that you must either own land, or have leased land to be able to sue for nuisance.

When you are repeatedly woken up by bad jazz coming from your neighbour's apartment downstairs, you have an action in nuisance, not simply because you've been disrupted in your sleep, but because in doing so, your neighbour has interfered with your right to enjoy your land as you see fit.

Types of Nuisance

Nuisance can fall into one of two categories:

1️⃣ Nuisance by unreasonable physical injury to land; or

2️⃣ Nuisance by unreasonable substantial interference with the right to enjoyment of land.

Physical Injury to Land

The first of the two categories is perhaps easier to identify, as it involves physical damage. Balkin and Davis, the authors of a distinguished book on torts, gives the examples of a neighbour setting up vibrations which cause your building to collapse, or the fumes from a nearby factory damaging plants and vegetables being grown by a plaintiff. The damage is plain to see, as it is to property, and it is equally plain to see why physical damage to property amounts to an interference with your enjoyment of your land.

Substantial Interference

If you cast your mind back to the example of the saxophonist neighbour, for all your lost sleep, there is no damage to your property which you could show before a court. The damage, in this example, is to your ability to make use of your land, to your right to use your land for rest. Fortunately, the law does recognise this as a form a nuisance, though the interference with your rights must be substantial.

This means that trivial interferences will not constitute nuisance, though what is trivial is a matter for the courts to decide. In general, substantial interference as determined by the courts, seems to have a lower bar than what we might consider substantial in an everyday sense. As per Andreae v Selfridge & Co Ltd [1937] 3 All ER 255, lost sleep through excessive noise is substantial, as can be other activities such as a neighbour's use of their land as premises for prostitution, or the installation of floodlights, which ends up bleeding light onto an adjacent piece of land (again examples cited in Balkin and Davis, “Law of Torts 5th Edition”).

Unreasonableness

Any nuisance must also be unreasonable, a concept which has not been given a clear definition by the courts.

The reasons as to why reasonableness is relevant to liability in nuisance does, however, give some guidance: my neighbour also has the right to make use of his or her land, including for the practice of musical instruments. Unfortunately, acoustics pays little heed to human subdivisions of space, no matter human attempts to erect walls with sound-proofing. The interference with my right to enjoyment of my land has started from my neighbour's land; he or she has not stepped foot in my apartment (which would make things a lot easier, being an act of trespass).

Reasonableness looks to balance the nature and circumstances of my neighbour's activity which has given rise to the nuisance, against the nature and circumstances in which I have suffered interference.

As noted above, we do not have a clear definition for what makes a nuisance reasonable or unreasonable, and so we don't have a definitive list of considerations, though we can look to certain things courts took into account in previous cases.

For example, residents who have moved into industrial areas have diminished prospects of success for nuisance from industrial by-products given that courts will look to locality; unfortunately, industrial production often involves by-products, and in areas designated for such use, it is not unreasonable for run off to affect neighbouring land, unless there was something unreasonable about the production process in the first place.

Another such consideration is the hypersensitivity of plaintiffs. An action in nuisance is unlikely to succeed where the plaintiff has suffered interference on account of particular sensitivity requiring exceptional freedom from interference. If my neighbour has consistently awoken me, for I am in fact awoken by any sort of noise, my claim may well fail.

Note, however, that once unreasonable substantial interference has been made out, in the process of calculating damages, the particular hypersensitivity of a plaintiff will not diminish the quantum of any damages. The defendant must find the plaintiff as they were in this regard. The Privy Council in McKinnon Industries Ltd v Walker [1951] 3 DLR 577 noted that the particular vulnerability of orchids to industrial fumes became irrelevant once it was proved that the damage to the orchids were the consequence of a non-trivial interference with land.

Credits:

This FAQ was written by Suk Jae Chung | Practical Legal Training (PLT) Placement, 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.

When should I reach out to speak to your legal team?

Our [Self-Service] legal documents are designed to be completed "without the intervention of a lawyer".

This approach will be appropriate for the majority of routine legal matters, where you are experienced and have learnt what needs to be considered and have gained experience in using our 24/7 online document portal to generate your legal documents instantly.

Some routine matters maybe totally new to you (meaning that you will have questions and we recommend you select our [Lawyer-Assisted] service).

Other matters maybe unusually complex, or of such high-value or risk that involving our legal team is the prudent course to take.

For these matters we recommend you select our [Full Service] option.

Credits:

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

When do I need to formally revoke the appointment of my Power of Attorney?

Whether or not you need to formally (in writing) revoke the Power of Attorney will depend upon your individual circumstances, as well as those of your appointed Attorney/s.

Attorney not acting in your best interest

If your Attorney does not follow your directions or does not act in your best interest, you should revoke the Power of Attorney.

Note: Making a new Power of Attorney does not automatically revoke earlier Powers of Attorney.

Each earlier Power of Attorney must be specifically revoked.

Legal Mental Capacity

The most important consideration is whether or not you think you may lose your legal mental capacity in the near future.

If this is the case, it is important you have executed your Will, and appointed Attorneys under Enduring Power of Attorney/s +/or Enduring GuardiansAdvance Health Directives you are confident will look after your best interests into the future.

If you have not considered and implemented your estate plan or are not confident you have appointed the right Executor/s, Attorney/s then now is time you need to make any required changes.

In order to revoke an Enduring Power of Attorney, the Principal (you) must still have legal mental capacity.  

For free resources aimed at providing assistance to lawyers and the public regarding how to assess legal mental capacity, please refer the following guides

➲ The Queensland Handbook for Legal Practitioners (i.e., Lawyers) on Capacity; or

➲ The NSW Justice Capacity Toolkit.

Important Note: All of the above applies regardless of whether or not you have concerns.

Legal mental capacity can be lost at anytime due to unforeseen circumstances.

We highly recommend that the above matters be considered as part of a regular review of your estate planning requirements.

If you lose legal mental capacity for any reason, and don't regain it, it will be too late to ensure your intent and instructions are followed.

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 Steps are required to register Powers of Attorney (and Revocations) with NSW Land Registry Services

Q: Do I have to register my Power of Attorney?

A: No.

Registration is not essential, unless the proposed actions of the Attorney involve certain types of land +/or share transaction (see below).

It is highly recommended to register your Power of Attorney so that it is:

➲ On record as a public document;

➲ Safe from loss or destruction; and

➲ More easily accepted as evidence that your Attorney is allowed to deal with your legal + financial affairs.

Q: When must a Power of Attorney be registered in NSW?

A: A Power of Attorney must be registered for:

✅ Land transactions, except for a lease with a term less than 3 years including any option of renewal (s163 Conveyancing Act 1919);

✅ Land transactions involving Torrens Title land, except for a lease with a term less than 3 years including any option of renewal (s36(2) Real Property Act 1900); and

✅ Share transactions (Australian Stock Exchange practice).

Registering a Power of Attorney in NSW

To register a Power of Attorney, you must:

1️⃣  Lodge the Power of Attorney at NSW Land Registry Services, Level 30, 175 Liverpool Street, Sydney 2000; together with a

2️⃣  Completed Deeds Index Particulars form

Registering an Interstate Enduring Power of Attorney in NSW

An Enduring Power of Attorney made under the legislation of another State or Territory of Australia may be accepted for registration providing it is accompanied by a certificate from a Legal Practitioner (that is, a Lawyer) from that State or Territory stating:

➲ The Power of Attorney was made in accordance with the formal requirements of the law of that State or Territory; and

➲ He or she has been admitted, holds a practising certificate and practices in that State or Territory.

A Power of Attorney written in a foreign language must be accompanied by a translation and be verified by the interpreter.

Revocation of a Registered Power of Attorney in NSW

If the Power of Attorney is registered, although you are not legally required to do so, in an abundance of caution, we recommend you take the additional steps summarised below required to register the revocation.

If you wish to register this revocation, you must:

1️⃣  Lodge the revocation at NSW Land Registry Services, Level 30, 175 Liverpool Street, Sydney 2000; together with a

2️⃣  Completed Deeds Index Particulars form.

Notes for Completion of a Deeds Index Particulars Form

(A) Lodging Party - Must be completed.

(B) Instrument - Power of Attorney / Power of Attorney - Revocation of

(C) Locality - Not required.

Link Conveyance - Not required.

Principal Deed - The affected Power of Attorney if registered.

(D) Indexing - The Principal.

(E) Certification - Required.

NSW Land Registry Guideline Pages

Registration of a Power of Attorney [after 16.2.2004]

Revocation of a Power of Attorney

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.

When does an Enduring Power of Attorney or Advance Health Directive automatically end in Queensland?

An Enduring Power of Attorney / Advance Health Directive will automatically end in Queensland if …

The Principal (that is you):

✅ Marry ➲ Unless the Enduring Document states otherwise, it is revoked if the Principal marries. However, if the Principal's spouse is already an Attorney, the EPOA is only revoked to the extent that it gives power to someone other than the spouse;

✅ Get Divorced ➲ If the Principal divorces, the Enduring Document is revoked to the extent that it gives power to the former spouse;

✅ Enter into a Civil Partnership ➲ Unless the Enduring Document states otherwise, it is revoked if the Principal enters into a civil partnership. However, if the civil partner is already an Attorney, the Enduring Power of Attorney is only revoked to the extent that it gives power to someone other than the civil partner;

✅ Terminate a Civil Partnership ➲ If the Principal terminates a civil partnership, the Enduring Document is revoked to the extent that it gives power to the former civil partner; or

✅ Make an Inconsistent Document ➲ The Enduring Document is revoked to the extent of any inconsistency with any later documents completed by the Principal, such as another Advance Health Directive or Enduring Power of Attorney presumably replacing the former EPOA or AHD;

✅ Specified Period or Purpose ➲ The Enduring Document may specify a term or date when it will end; or that it has been created for specific purpose and will end upon the completion of that purpose; or

✅ Pass away ➲ If you pass way, the Enduring Document is automatically revoked in its entirety.

An Enduring Power of Attorney / Advance Health Directive will also automatically end in Queensland if any Attorney

❌ Withdraws ➲ The Attorney may withdraw by giving signed notice or by getting the court’s leave to withdraw;

❌ Becomes a paid carer or health-care provider to the Principal ➲ If the Attorney becomes a paid carer or health-care provider, the Enduring Document is revoked to the extent that it gives that Attorney power for a personal matter;

❌ Becomes incapable ➲ An Attorney’s power is revoked if he or she is no longer capable to make a decision about a matter;

❌ Becomes bankrupt or insolvent ➲ If an Attorney becomes bankrupt or insolvent, the Enduring Power of Attorney is revoked to the extent that it gives that Attorney power for financial matters; or

❌ Passes away.

Relevant Legislation:

ss. 50-59 Powers of Attorney Act (1998) Qld.

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 Witness Restrictions, Requirements and Guidelines for witnessing Enduring Documents in Queensland?

Witness Restrictions

The witness must not be:

❌ The person signing for the Principal (if applicable);

❌ An Attorney of the Principal;

❌ A current paid carer or health-care provider for the Principal; or

❌ A relation of the Principal or of the Principal’s Attorney/s.

Witness Requirements

The Enduring Document must be witnessed by one of the following:

⚖️ Justice of the Peace;

⚖️ Commissioner for Declarations;

⚖️ Lawyer; or

⚖️ Notary Public.

Guidelines for Witnessing Enduring Documents

Witnesses must satisfy themselves that the Principal understands the nature and effect of:

✅ The document they are signing

✅ The delegation of their decision making powers and directions given about future health care.

When taking instructions, witnesses should:

✅ Ask open-ended questions

✅ Take notes, detailing their interview with the Principal

✅ Refer the Principal to a health care professional if you have doubts about their capacity to understand the document.

Do not witness an enduring document if you have concerns that the Principal:

Lacks Capacity to understand what they are signing; or

❌ Is being Unduly Influenced by another person to sign the document.

For more information please refer to these guidelines published by the Office of the Public Guardian.

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.

Is the Legal Documents Portal Secure? Does it use encryption to protect my personal information?

Our website + back-end system use the best possible web-based security available.

It was once said:

It would take the combined processing power of every computer in the world thousands of years to crack 4096-bit encryption.

In a more general context (outside of encrypted secure website traffic/data) it has also been said:

Data with 4096-bit encryption (only protected by a password) could still be compromised within seconds.
How? Human error.
Easy pass-phrase, written down password, re-used password... etc. basically, always be on the lookout for the weakest link.
Trust the technology, but never trust the weak link - the user!

Credits:

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

Who is entitled to be provided with a copy of the Will and Probate documents?

Can I Get a Copy of Someone Else's Will?

There are many reasons as to why you may want a copy of someone else's Will.

🧩 Perhaps you are a relative of the testator (meaning: the person who has made the Will) and you would like some foresight as to the tax implications of any interest you may have.

🧩 Perhaps you suspect that the testator had been pressured into making a new Will whilst lacking testamentary capacity (meaning: capacity of a testator to make a valid Will).

🧩 Maybe you are a creditor of the testator, and you would like to peruse the Will in case it itemises the testator's assets.

Whilst the testator is still alive, there is nothing to stop you from asking the testator directly for a copy of the Will, though of course, the testator is in no way obliged to send you a copy.

Upon the death of a testator, the situation changes somewhat.

You could ask the executor (meaning: someone appointed by the testator to carry out the instructions on a Will) for a copy, though again, the executor is not obliged to do so unless you have a Statutory Entitlement (refer below for more information).

Generally, you can only obtain a copy of someone's Will once the executor had applied for, and been issued a Grant of Probate (meaning: right to carry out the instructions in the Will) by the relevant Probate Court.

Upon a Grant of Probate, a Will becomes a public document, accessible via a search on the Probate Registry.

However, this is a process that could take several months, and you may be required to bear some costs to make searches on a Probate Registry.

Where you have not been separately informed by the executor as to your interest under the Will (or whether you have an interest at all), it could be some time before you know anything of how your tax position might change or whether you need to prepare to contest the Will.

Statutory Entitlement to a Copy of Someone's Will

Fortunately, the following States (and Territory) grant a Statutory Entitlement to certain persons (as defined by the relevant legislation) access to a copy of the Will following the death of a testator, before a Grant of Probate:

⚖️ New South Wales - Succession Act 2006 - s 54

⚖️ Northern Territory - Wills Act 2000 - s 54

⚖️ Queensland - Succession Act 1981 - s 33Z

⚖️ Tasmania - Wills Act 2008 - s 63

⚖️ Victoria - Wills Act 1997 - s 50

Similar Core Approach to the grant of Statutory Entitlement

The above provisions show some degree of variance from state to state, though they broadly share the same core approach in permitting:

✅ A particular class of people to request a copy of the Will from the person who has control or possession of the Will of a deceased testator (usually the executor);

✅ At the expense of the requestor;

✅ A Will in this context includes:

1️⃣ A revoked Will;

2️⃣ A document purporting to be a Will;

3️⃣ A part of a Will; and

4️⃣ A copy of a Will.

The common classes of persons permitted to request a copy of the Will are:

✅ Any person mentioned in the Will; this person does not have to be a beneficiary (i.e. they don't need to be given something under the Will; it is enough that they are named or referred to in the Will);

✅ Any person named in a previous Will as a beneficiary;

✅ A spouse/partner/parent/issue of the testator, except in …

➲ NSW does not include parent(s);

➲ NT does not include partner;

➲ QLD does not include partner;

➲ TAS does not include partner;

➲ VIC does not include issue, but includes children instead.

✅ A person who would have been entitled to a share of the estate of the testator had the testator died intestate (meaning: someone who died without a valid Will);

✅ A parent or guardian of a minor mentioned in the Will, or of a minor who would have been entitled to a share of the estate had the testator died intestate; and

✅ A creditor of the testator, or otherwise someone with a claim (in law or equity) against the estate of the deceased.

Note: The list above is a generalisation, created to help you gauge whether you are somewhere in the ballpark as to the class of persons who may request access to a Will before a grant of probate.

The specific provisions vary by State (and Territory) and can be found below.

There are additional classes in some states, and others narrow the classes described above.

You should take care to look over the list for your State/Territory before considering any action, or discussing your options in more detail with our legal team.

New South Wales

The category of persons entitled to inspect the Will of a deceased person in New South Wales can be found under s 54 of the Succession Act 2006 (NSW).

New South Wales provides for additional classes of people eligible to access a Will, found in paragraphs (h), (i) and (j) below.

With regards to paragraph (j), the Succession Regulations 2020 do not appear to prescribe any further classes of people.

As per subsection (2) of s 54:

A person who has possession or control of a Will of a deceased person must allow any one or more of the following persons to inspect or be given copies of the Will (at their own expense) -

(a) any person named or referred to in the Will, whether as beneficiary or not,
(b) any person named or referred to in an earlier Will as a beneficiary of the deceased person,
(c) the surviving spouse, de facto partner or issue of the deceased person,
(d) a parent or guardian of the deceased person,
(e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
(f) any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
(h) any person committed with the management of the deceased person's estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
(i) any attorney under an enduring power of attorney made by the deceased person,
(j) any person belonging to a class of persons prescribed by the regulations.

Northern Territory

The category of persons entitled to see the will of a deceased person in the Northern Territory can be found under s 54 of the Wills Act 2000 (NT).

As per subsection (2) of s 54:

A person who has possession or control of a Will of a deceased person must allow any one or more of the following persons to inspect the Will and make copies of the will at their own expense:

(a) a person named or referred to in the Will, whether as a beneficiary or otherwise;
(b) the surviving spouse or issue of the deceased person;
(c) a parent or guardian of the deceased person;
(d) a person who would be entitled to a share of the deceased person's estate if the deceased person had died intestate;
(e) a creditor or other person having a claim at law or in equity against the deceased person's estate;
(f) a beneficiary of a prior Will of the deceased person;
(g) a parent or guardian of a minor referred to in the Will or a minor who would be entitled to a share of the deceased person's estate if the deceased person had died intestate.

Queensland

The category of persons entitled to inspect the Will of a deceased person in Queensland can be found under s 33Z of the Succession Act 1981 (Qld).

Section 41, mentioned in paragraph (g) below, gives power to the Supreme Court of Queensland to make orders for the proper maintenance of the spouse, children or dependants from the estate of a deceased person, where the existing provisions for maintenance are inadequate.

An order for a s 41 order may be made by the spouse, children or dependants of the deceased, or by anyone acting on their behalf.

As per subsection (4) of s 33Z:

Entitled Person, in relation to a Will, means -

(a) a person mentioned in the Will, whether as beneficiary or not and whether named or not; or
(b) a person mentioned in any earlier Will of the testator as a beneficiary and whether named or not; or
(c) a spouse, parent or issue of the testator; or
(d) a person who would be entitled to a share of the estate of the testator if the testator had died intestate; or
(e) a parent or guardian of a minor mentioned in the Will or who would entitled to a share of the estate if the testator had died intestate; or
(f) a creditor or other person who has a claim at law or in equity against the estate; or
(g) a person who may apply for an order under section 41.

Tasmania

The category of persons entitled to inspect the Will of a deceased person in Tasmania can be found under s 63 of the Wills Act 2008 (Tas).

As per subsection (1) of s 63:

Any person having the possession or control of a Will (including a revoked Will) or a copy of any such Will and any part of such a Will (including a purported Will) of a deceased person must allow any or all of the following persons to inspect and, at their own expense, take copies of it:

(a) any person named or referred to in it, whether as beneficiary or not;
(b) the surviving spouse, any parent or guardian and any issue of the testator;
(c) any person who would be entitled to a share of the estate of the testator if the testator had died intestate;
(d) any creditor or other person having any claim at law or in equity against the estate of the deceased;
(e) any beneficiaries of prior Wills of the deceased;
(f) a parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate.

Victoria

The category of persons entitled to inspect the Will of a deceased person in Victoria can be found under s 50 of the Wills Act 1997 (Vic).

As per s 50:

A person who has possession and control of a Will, a revoked Will or a purported Will of a deceased person must allow the following persons to inspect and make copies of the Will (at their own expense) -

(a) any person named or referred to in the Will, whether as beneficiary or not;
(b) any person named or referred to in any earlier will as a beneficiary;
(c) any spouse of the testator at the date of the testator's death;
(d) any domestic partner of the testator;
(e) any parent, guardian or children of the deceased person;
(f) any person who would be entitled to a share of the estate if the deceased person had died intestate;
(g) any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate;
(h) any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.

What about the ACT, South Australia and Western Australia?

Unfortunately, in the ACT, South Australia and Western Australia, the legislation does not really provide for access to Wills prior to a grant of probate.

That said, in the ACT, s 32 of the Wills Act 1968 provides for the capacity of individuals to deposit a Will for safe storage with the Office of the Registrar. s 34 provides that a person may make searches on the register, though this does not mean that a person has access to a Will found on the register, not to mention the fact that a testator may well have stored his or her Will somewhere other than with the Registrar.

In Western Australia, s 40 of the Wills Act 1970 provides for the capacity of the WA Supreme Court to make, alter or revoke a Will on behalf of a person who lacks testamentary capacity. s 44 then states that any Will so made or altered is to be stored with the Principal Registrar.

s 45 then permits an individual to make applications to the Court to request a copy of the Will from the Principal Registrar.

These are provisions that are activated by a very particular set of circumstances (on amendment or creation of a Will by a court on behalf of someone lacking testamentary capacity), and will be of limited relevance to the vast majority of those seeking access to a Will prior to the grant of probate.

Credits:

This FAQ was prepared by Suk Jae Chung | Practical Legal Training (PLT) Placement, 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.

Are there any time limits for making an application to contest an Australian Will?

Preliminary Note: This FAQ focuses on the applicable time limits [by jurisdiction] when you are considering contesting an Australian Will.

The legal grounds upon which you can contest a Will are a different matter which is only dealt with partially here.

Stay tuned for a fuller discussion on legal grounds for contesting a Will in an upcoming FAQ.

Background ➲ Time Limits Vary

Timing is vital to any legal matter, but it is particularly important that you seek legal advice quickly if you are considering contesting a Will.

In a practical sense, any challenge to a Will is going to be much more difficult where the executor (person carrying out the instructions of a Will) has already started to make distributions from the estate to the beneficiaries named in the Will, after being declared valid by the Court (i.e. probate has been granted).

As such, the relevant time limit to contest a Will depends on whether you are looking to challenge the Will before or after a Grant of Probate.

In general, you can contest a Will on two grounds:

1️⃣ The validity of a Will

➲ The contest should be acted upon quickly, preferably before a Grant of Probate, though Wills can still be contested and rectified after a Grant of Probate.

2️⃣ The contents of a Will

Example: For a failure of family provision or miscarriage of intentions

➲ The contest can be made after a Grant of Probate, though you should try to act as soon as possible, before the executor has started to make distributions from the estate.

Unfortunately, it can be hard to know whether you have legal grounds to challenge a Will when you haven't been provided with the opportunity to examine the Will.

A Will becomes publicly accessible upon Grant of Probate.

As detailed in our FAQ: Who is entitled to be provided with a copy of the Will and Probate Documents? most jurisdictions (except ACT, SA & WA) provide a statutory right to access a Will before a Grant of Probate, if you fall into an eligible class of persons in relation to the testator (the person who made the Will).

For everyone else, you are at the mercy of the executor's discretion; the executor could choose to send you a copy of the Will prior to a Grant of Probate, but they do not have to.

Contests Prior to a Grant of Probate

In one sentence: Check the Online Notices for an Application for Grant of Probate.

Who is this for?

If you do not have access to a copy of the Will or you would like to contest the validity of a Will.

Lack of access to the Will could be a significant problem, especially if you think that a Will may not be valid (for reasons such as a lack of testamentary capacity, undue influence or fraud).

Fortunately, in most states / territories, before an application for probate can be made, the executor must provide public Notice of Intention to Apply for Grant of Probate.

Notices of Intention to Apply for Grant of Probate are published on the sites linked below; please note that public notices are not legally required in South Australia and Western Australia. If, for some reason, you did not know who to contact with regards to asking for a copy of the will, you may find the relevant details from the notices.

Where to Find Notice of Intention to Apply for Probate

State Website Link
ACT Link
NSW Link
NT Link
Qld Link
SA Notice Not Required
Tas Link
Vic Link
WA Notice Not Required

To Caveat or not to Caveat?

Before a Will has been granted probate, it is possible to lodge something called a caveat on the Grant of Probate to prevent the Court from granting a Will to probate.

However, a caveat may not be lodged by just any person, despite what is suggested by legislation (see the table below).

Based solely on the legislation, it appears that in all states except the ACT and Queensland, any person may lodge a caveat.

In reality, this is NOT the case.

There are established cases which provide that anyone applying for a caveat must have both:

1️⃣ An interest in the estate (standing); as well as

2️⃣ Grounds to justify the application.

If you lodge a caveat in the absence of either of the above, you may be liable for Court costs with regards to the matter.

All that said, should you have the relevant standing, and appropriate grounds for contest, lodging a caveat represents the earliest time from which you might contest a Will.

By acting before the Grant of Probate, you minimise the risk of the executor having distributed some part of the estate already.

If you think you may be in a position to lodge a caveat on a Grant of Probate, we strongly advise you to contact us in regards to the matter, so that you do not run the risk of being liable for unnecessary costs.

Who can lodge a caveat? (Misleading)

State Legislation Provision Who? Link
ACT Court Procedure Rules 2006 r 3066 "a person claiming to have an interest in an estate" Link
NSW Probate and Administration Act 1898 s 144 "any person" Link
NT Administration and Probate Act 1969 s 44 "a person" Link
Qld Uniform Civil Procedure Rules 1999 r 624 "a person claiming to have an interest in an estate" Link
SA Administration and Probate Act 1919 s 26 No Qualification Link
Tas Probate Rules 2017 r 78 "a person" Link
Vic Administration and Probate Act 1958 s 58 "any person" Link
WA Administration Act 1903 s 63 "any person" Link

Contests After a Grant of Probate

In one sentence: The time limit applicable to you will depend on your legal ground for challenge.

Family Provision Obligations

A Will may be contested for a failure to provide for the "proper maintenance, education or advancement in life" of an eligible family member.

(More details will be provided in the separate FAQ on Grounds for Contest, but for now, think either spouse, de facto partner, children or other dependants only).

This is a challenge to the content of the Will (not the validity of the Will), therefore you do not have to try to contest the Will before a Grant of Probate, though you should nonetheless move quickly to minimise the chance that you are frustrated by distributions of the estate.

The time limits for a family provision contest are listed by state / territory below.

Note: In New South Wales and Queensland, the clock starts ticking upon the death of the testator, and not upon Grant of Probate as in every other jurisdiction.

Family Provision Time Limits by Jurisdiction

State Legislation Provision Time Limit Link
ACT Family Provision Act 1969 s 9 Within 6 Months of Grant of Probate Link
NSW Succession Act 2006 s 58 Within 12 Months of Death of Testator Link
NT Family Provision Act 1970 s 9 Within 12 Months of Grant of Probate Link
Qld Succession Act 1981 s 41(8) Within 9 Months of Death of Testator Link
SA Inheritance (Family Provision) Act 1972 s 8 Within 6 Months of Grant of Probate Link
Tas Testator's Family Maintenance Act 1912 s 11 Within 3 Months of Grant of Probate Link
Vic Administration and Probate Act 1958 s 99 Within 6 Months of Grant of Probate Link
WA Family Provision Act 1972 s 7(2) Within 6 Months of Grant of Probate Link

In each state/territory, the Court, in its discretion, may extend the time in which a family provision contest can be brought, though the applicant for an extension of time must show good reasons for why a Court should do so.

Misinterpretation of Testator's Intentions and Rectification

In each state/territory, the Court has discretion to rectify a Will, where the Will does not carry out the testator's intentions.

In all jurisdictions except the ACT and SA, the Court may only exercise its discretion where the Will does not carry out the testator's intentions because either:

❌ A clerical error was made; or

❌ The words of the Will misinterpret the intentions of the testator.

In the ACT and SA, the discretion of the Court may be exercised in any situation in which the Will fails to carry out the intentions of the testator.

Further in regards to the ACT, if the executor for the estate is the state Public Trustee and Guardian, the limitation period to rectify a Will starts from when the Public Trustee and Guardian gives public notice (that is, before a Grant of Probate has been made).

Otherwise, the time limit starts from the Grant of Probate.

Rectification Time Limits by Jurisdiction

State Legislation Provision Time Limit Link
ACT Wills Act 1968 s 12A Within 6 Months of Grant of Probate / (for Public Trustee and Guardian) Notice by Public Trustee Link
NSW Succession Act 2006 s 27 Within 12 Months of Death of Testator Link
NT Wills Act 2000 s 27 Within 6 Months of Death of Testator Link
Qld Succession Act 1981 s 33 Within 6 Months of Death of Testator Link
SA Wills Act 1936 s 25AA Within 6 Months of Grant of Probate Link
Tas Wills Act 2008 s 42 Within 3 Months of Death of Testator Link
Vic Wills Act 1997 s 31 Within 6 Months of Grant of Probate Link
WA Wills Act 1970 s 50 Within 6 Months of Death of Testator Link

As with Family Provision contests above, the Court may, in its discretion, allow challenges past the time limits specified above, though again, the party applying for the extension must make a good case as to why an extension should be granted.

In this situation, it is highly relevant whether the executor has started to distribute the estate, as the Court may take this into account in considering whether to grant an extension.

Credits:

This FAQ was prepared by Suk Jae Chung | Practical Legal Training (PLT) Placement, 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 extras does an upgrade to Lawyer-Assisted Service include?

Your upgrade to our [Lawyer-Assisted] Service includes …

⚖️ Professional Indemnity (Limited Liability) by a scheme approved under Professional Standards Legislation;

⚖️ Access to Professional Fee Funding* / Disbursement Fee Funding / Family Law Funding (subject to approval by QuickFee our external legal finance provider);

✅ Allocated Time included to understand your circumstances + objectives, answer your queries + provide legal advice & make recommendations regarding alternative/additional options; and

✅ Create your standardised Legal Document based on your instructions.

Plus [+] Where Appropriate (at no additional charge)

⚖️ Use of proprietary fonts to maximise fraud prevention;

⚖️ Use of our Law Firm Letterhead;

➲  Send your Legal Document for electronic signature/s using AdobeSign; and/or

🔒 Application of TraxPrint Legal Document Security Technology for Fraud + Litigation Prevention.

* More Information about Professional Fee Funding:

Our firm has partnered with QuickFee and Splitit to provide you with an interest free payment option. While we remain your service provider, the payment method is provided by QuickFee, a specialist payments provider for professional firms.

Credits:

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

How can I use my Phone/Tablet to create a contemporaneous record of any incident or crime?

The iWitnessed App is a great locally developed [free to download] technology tool to help collect a contemporaneous record of any incident or crime!

Extracted from the App Store Preview Summary Page:

"iWitnessed helps to collect and preserve eyewitness evidence. It has lots of useful features to help witnesses and victims record the details of the event they experienced.
iWitnessed has been designed by Psychological scientists who are experts in eyewitness memory and police interviewing.
iWitnessed uses a guided recall procedure that has been designed to maximise the value of the information recorded while also helping protect your memory of the event."

Source: App Store Preview - iPhone Screenshot

Why we made iWitnessed, an app to collect evidence” by Helen M. Paterson [April 2018].

Extracted from the article:

"Eyewitness evidence can be critical to investigations and trials.
However, research shows that eyewitness memory can be inaccurate and vulnerable to distortion depending on what happens next – for example, inaccurate information encountered through leading questions, discussion with other witnesses, or journalists.
This is particularly true when there is a long delay between witnessing an event and reporting the details to police. We forget details very rapidly, and the more we forget, the more our memories become prone to inaccuracies.

Anyone with a device

"iWitnessed is designed to be used by anyone within Australia with a smartphone or tablet, and does not require high levels of literacy or language skills.
Users can type details using their keypad, and record spoken notes – standard voice-to-text functions also work in iWitnessed.
Responses do not need to be in English, allowing witnesses to use their preferred language to give the most accurate and detailed account."

Can iWitnessed evidence be used in court?

"Legally speaking, evidence collected using iWitnessed will be treated like contemporaneous notes.
Contemporaneous notes are witness accounts composed during or immediately after a critical event, and in court proceedings they can range from a note scribbled on the back of a napkin to a meticulous description of the event.

According to the Evidence Act 1995 NSW (sections 32 and 34), contemporaneous notes or contemporaneous recordings of events can be used to refresh the memory of a witness to an event. Even if very rudimentary, they can add to the reliability and strength of the evidence being given in court proceedings.

It is also possible that developments in evidence law may enable evidence collected using iWitnessed to become directly admissible. While there is some legislation on the admissibility of this type of evidence in court, this has not kept pace with the rapid development of modern technologies...".

The iWitnessed App is available for free download on both Apple and Android.

Credits:

The iWitnessed App was developed by a local team of eyewitness memory experts [Helen M. Paterson, Celine van Golde (The University of Sydney), Richard Kemp (UNSW Sydney), Nicholas Cowdery (former Director of Public Prosecution in NSW) and NSW police officers].

Extracts from the article have been republished under Creative Commons licence.

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.

How can Security of Payment Legislation assist debt collection under a building contract or sub-contract?

Is this a building/construction matter?

If the debt involves a progress claim under a building contract or sub-contract for the supply of goods or services in the building industry, then you will have the option to invoke the relevant state/territories Security of Payment Statutory Scheme.

Security of Payment refers to any system designed to ensure that contractors + sub-contractors in the building industry are paid even in case of dispute.

This can involve a system of progress payments, interim arbitration decisions, or a system which legally requires a company to pay an invoice within a set number of days, regardless of whether the company believes they are accurate.

Background to the Security of Payment Legislation

Security of Payment legislation has been introduced by each Australian State and Territory to allow for the rapid determination of progress claims under building contracts or sub-contracts and contracts for the supply of goods or services in the building industry.

This process, which establishes adjudication as the primary dispute resolution mechanism, was designed to ensure cash flow to businesses in the construction industry, without the parties getting tied up in lengthy and expensive litigation or arbitration.

In addition to quick payment, the scheme also allows for Security of Payment to be provided in stages or payment schedule.

Common method used to invoke the operation of the Security of Payment Statutory Scheme

The relevant State/Territory Security of Payment Statutory Scheme can be invoked by including the following words of your invoice.

"This is a payment claim made pursuant to the Building and Construction Industry (Security of Payment) Act 2009 (ACT)”; or
"This is a payment claim made under the Building and Construction Industry Security of Payment Act 1999 NSW".
These Statements may vary depending in which State/Territory the Claim is made......".

These statements have not been a requirement in NSW since legislative amendments made in 2013.

Advantages

✅ Secures Rapid Payment;

✅ Adjudication is Quicker + Less Expensive than Court;

Disadvantages

❌ Potential for Power Imbalance;

❌ Confusion + Poor Understanding;

❌ Costliness of Dispute Resolution.

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 the current situation with respect to the temporary COVID-19 debt relief measures?

Temporary debt relief measures ended on 1 January 2021

As of 1 January 2021, temporary legislative changes implemented due to COVID-19 ceased, and the following changes apply for individuals and companies:

For individuals

⚖️ The minimum debt threshold for creditors to apply for a bankruptcy notice against an individual has reduced from the temporary amount of $20,000 to the new permanent amount of $10,000.

⚖️ The timeframe for a debtor to respond to a bankruptcy notice has reverted to 21 days. This means if a bankruptcy notice is issued on or after 1 January 2021, the debtor will have 21 days to respond.

⚖️ The period for temporary debt protection for debtors has reverted to 21 days.

⚖️ For more information, see the Australian Financial Security Authority.

For companies

⚖️ The minimum debt threshold for creditors to issue a statutory demand against a company has reverted to $2,000.  

⚖️ The timeframe for a debtor to respond to a statutory demand has reverted to 21 days.

This means if a statutory demand is issued on or after 1 January 2021, the debtor will have 21 days to respond.

⚖️ For more information, see Insolvency reforms to support small business.

If you receive a bankruptcy notice or statutory demand, you should seek independent legal advice or contact a financial counsellor.

Source: ACCC Debt Collection Guideline for Collectors & Creditors.

How can a party apply for a NSW Court appointed referral for Pro Bono [Free] Legal Assistance?

Application for a NSW Court appointed Referral for Pro Bono [Free] Legal Assistance

Procedure

1️⃣ An application for a Court appointed Referral for Legal Assistance must be made by a Notice of Motion setting out the order sought from the Court that assistance be granted: Uniform Civil Procedure Rules 2005 (NSW) rr 18.1, 18.3(1)(f) (‘UCPR’).

A blank [Form 20] Notice of Motion can be downloaded here.

2️⃣ Approval depends on whether the Court is satisfied that referral for legal assistance is in the interests of the administration of justice and whether the applicant is otherwise unable to obtain assistance: UCPR r 7.33(2).

3️⃣ The matters the Court may take into account for this purpose include:

⚖️ The means of the applicant;

⚖️ The applicant’s capacity to obtain legal assistance on his/her own;

⚖️ The nature and complexity of the proceedings: UCPR r 7.36(2); and

⚖️ Any other matter that the court considers appropriate.

UCPR r 7.36 is annexed in its entirety to this FAQ (refer below).

4️⃣ There must be evidence that the application has merit, best in the form of an affidavit in support of the application: Bodenstein v Voukelatos [2010] NSWSC 249, [2].

5️⃣ Should the application be successful, the referral will be made to the Pro Bono Panel of solicitors and barristers maintained by the Registrar of the Supreme Court for the very purpose of the legal assistance scheme: UCPR r 7.35; MM International (Australia) Pty Ltd v Workers Compensation Nominal Insurer [2015] NSWSC 1846, [9] (‘MM International’).

Overarching Principles to be met by the Application

6️⃣ The  application would be drafted most effectively following the matters set out in r 7.36(2): MM International, [11].

7️⃣ The interests of the administration of justice demand that complex matters be disposed of efficiently, which is best achieved through legal assistance: MM International, [17].

8️⃣ The  interests  of  the  administration  of  justice  also  demand that  the scheme  not  be exploited,  and  so  the  applicant  must  show  that  there  is  a  real  basis for  the  scheme  being productive of benefit to the applicant: MM International, [18].

9️⃣ However, the application will still be successful even if the prospects of obtaining relief from the court are slim: MM International, [19].

Grounds for Application

🔟 Pursuant to r  7.36(2)(a), if the applicant can show limited means, for example:

✅ Rented accommodation;

✅ No other assets; and

✅ An unprofitable  business;

This first matter will be satisfied: MM International, [12].

1️⃣1️⃣ Pursuant to r 7.36(2)(b), the applicant must show an inability to obtain legal assistance, whether or not due to an inability to afford to pay a solicitor: MM International, [13].

1️⃣2️⃣ Even if an applicant has previously been able to obtain legal assistance for a different matter, that fact will not prejudice the application: MM International, [14].

1️⃣3️⃣ It should also be noted that previous representation for a different matter is not the same as assistance under a previous Court referral, the latter being a bar to an application: UCPR r 7.36(2A); MM International, [16]; Clemett v NSW Lotteries Corporation Pty Ltd (No 2) [2013] NSWSC 2037, [16]-[17](‘Clemett’).

1️⃣4️⃣ Pursuant to r 7.36(2)(c), the matter for which the applicant is seeking assistance must have a degree of complexity, namely an identified question of law, for example:

➲ An issue with respect to a statute, noting that without legal assistance, identifying such a question in itself would pose difficulties to an applicant: MM International, [15]; c.f. Clemett, [14].

UCPR r 7.36
7.36 Referral to a barrister or solicitor (cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)
(1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.
(2) For the purposes of subrule (1), the court may take into account—
(a) the means of the litigant, and
(b) the capacity of the litigant to obtain legal assistance outside the scheme, and
(c) the nature and complexity of the proceedings, and
(d) any other matter that the court considers appropriate.
(2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.
(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.
(4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.
(4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant’s referral, the registrar may make an order terminating the litigant’s referral.
(5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.
(6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.

Credits:

The above summary of the procedure to apply for a Court appointed Referral for Legal Assistance 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.

How do I ensure I get the pre-litigation steps right? Who is the Debtor/Defendant? Where does the Letter of Demand/Statutory Demand/Concerns Notice need to be emailed/posted?

How do I ensure I get the pre-litigation steps right?

If you have a written agreement with the Debtor/standard terms of trade

The identity of the Debtor and their address for service (incl. email +/or fax) should already be clearly specified in the agreement, or provided by the Debtor as part of your standard business processes.

We also assume that the terms of your agreement will provide permission to serve notices via email or fax (if required).

If there is no written agreement

You will need to consider whether you already know the actual identity of the Debtor/Defendant and their address for notices/Service.

The Debtor/Defendant may not be the person with whom you made the original agreement, or the person who actually published the defamatory statement.

The person you might consider is the Debtor/Defendant may have been acting/dealing as an agent or employee of another person, the actual owner/s of the business, a sole trader, partnership, unincorporated association, company, etc.

If you only have the name of the business, you can start by conducting a free ASIC business names index + business names holder organisation/person searches to determine the owner of the business name, followed by a paid ASIC search to determine a valid + current address for Service.

connectonline.asic.gov.au

If the Debtor/Defendant is a Company

Before sending a Letter of Demand/Statutory Demand/Concerns Notice to a Debtor company, we strongly recommend you conduct a paid current ASIC Company Search (min. cost $9) to confirm that:

✅ The Debtor/Defendant company is not currently under administration/in liquidation; and to

✅ Ascertain the companies current registered office address for service.

Legal Assistance

If you have any questions regarding the above please contact our legal team to discuss.

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 do I need to consider prior to deciding whether to commence legal proceedings?

Prior to deciding whether to commence Legal Proceedings

Laches + Limitation Periods

Please read our FAQ: What are the downsides to delaying 1️⃣ Informing the other side of my claim against them; or 2️⃣ Filing my claim with the Court?

Litigation Risk

We strongly recommend you obtain legal advice + assistance regarding:

✅ Determining whether the Debtor has the potential financial means to ultimately pay the debt + interest + legal costs should you be successful in your claim;

✅ If the Debtor is an individual, conducting a Bankruptcy Search;

✅ If the Debtor is a company, conducting a Bankruptcy Search;

✅ Determining whether the Debtor has been or is currently involved in other legal proceedings;

✅ The legal merits of your claim; and

✅ Ensuring you understand that it is extremely rare to recover your legal costs in litigation; and

✅ The inherent Litigation Risk of potential liability for the Debtor's legal costs in commencing legal proceedings in a Court, as opposed to a Tribunal;

✅ The cost + availability of litigation funding, +/or litigation insurance.

Valid + Effective Service

The requirements for valid + effective Service of a Filed Application or Statement of Claim vary depending on the relevant Court or Tribunal.

We strongly recommend you obtain legal advice + assistance regarding:

✅ The selection of the appropriate Court or Tribunal to bring suit; as well as

✅ The drafting of the required Application/Statement of Claim; and

✅ The compliant Service of same on the Debtor once legal proceedings have been filed.

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.

Why has it come to this? Root Cause Analysis: Letters of Demand/Statutory Demand for non-payment of debt

Root Cause Analysis

In order to reduce the need to send Letters of Demand/Statutory Demands in the future, it is worthwhile to conduct a root cause analysis which might include the following questions:

✅ Did you perform reference checks on the Debtor?

✅ Did you perform a credit check before extending credit?

✅ If you are dealing with a company, did you obtain a personal guarantee from the company directors to support the account?

✅ Does your written agreement include a term granting you the right to secure a charge against the Debtor's current +/or future real and/or personal property?

✅ Do you have a written agreement with the Debtor, which includes payment terms, address for service, and the capability to serve notices via email/fax?

✅ Did you engage a lawyer to prepare your written agreement with the debtor or your standard terms of trade?

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.

Blue Ocean Opportunities in the Legal Profession

*An estimated 70-80% of Australians fail to contact a lawyer when experiencing a legal issue

When Blue Ocean Strategy® is applied to the legal profession a large untapped market* can be quickly identified.

To find out more please read our blog article: How to Achieve Zen-Like “Peace of Mind” knowing your Legal Affairs are in Order

*An estimated 70-80% of Australians fail to contact a lawyer when experiencing a legal issue.

Blue Ocean Law Group℠ have packaged our legal services to provide simple [Self-Service] online 24/7 solutions for everyday personal + business legal needs + made them available anywhere (even via mobile phone if necessary) via a fixed price per document, or an affordable subscription model.

A Key Concept within Blue Ocean Strategy ® is Differentiation: Think "Blue Cow"!

Blue Cow!

"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!

Our goal is to be truly remarkable in everything we do."

When your business brand + the way it is positioned stands out boldly, it attracts attention…

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

What is a Purple Cow?

One way to Differentiate your business so that it can capture and hold the attention of new Blue Ocean markets is to follow the lead of Seth Godin who coined the term "Purple Cow" when he wrote the book "Purple Cow: Transform your Business by Being Remarkable".

Publisher's Summary (Penguin)

"You're either a Purple Cow or you're not.
You're either remarkable or invisible.
Make your choice.
What do Apple, Starbucks, Dyson and Pret a Manger have in common?
How do they achieve spectacular growth, leaving behind former tried-and-true brands to gasp their last?
The old checklist of Ps used by marketers - pricing, promotion, publicity - aren't working anymore.
The golden age of advertising is over.
It's time to add a new P - the Purple Cow.
Purple Cow describes something phenomenal, something counterintuitive and exciting and flat-out unbelievable.
In his new 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."

©2020 Seth Godin (P)2020 Penguin Audio (copied for illustrative purposes using Fair Use principles).

Credits:

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

Do foreign laws apply to my Australian website?

Where is your website hosted? Do you target overseas users/clients? etc.

Firstly, your law(s) of reference determine which rules you’re subject to.

Simply put, the laws of a particular region [for example, the EU GDPR] can apply to you in addition to local Australian law even if you don’t live, or run your business or charity (also known as a not-for-profit or NFP) there.

In general, the laws of a particular region can apply if your business or NFP:

➲ Base your operations there; or

➲ Use processing services or servers based in the region; or

➲ Service targets users from that region (example: accepting payment in Euros).

So to be clear, this basically means that regional regulations may apply to you and/or your business or charity whether you’re located in the region or not.

Be on the safe side, ensure you comply with the strictest regulations

For that reason, it’s always advisable that you approach your data processing activities with the strictest applicable regulations in mind.

You can read more about which privacy laws apply to you here.

Another point in favour of having a comprehensive privacy policy in place is that it’s simply good business to have a Privacy Policy.

Regardless of whether legal obligations apply, all customers/clients today fully expect their personal data will be respected + protected.

Any breach, aside from potentially leading to legal consequences, will directly impact your business reputation, and ultimately could cause your business or charity to shut-down due to public loss of confidence.

Credits:

This FAQ was extracted from the below 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?

Further Reading:

What Australian Privacy Legislation other than the Privacy Act may apply to my business/NFP?

Other Australian Privacy Legislation

While our Privacy Policy solutions make compliance easy for many aspects of privacy law, full business compliance requires a holistic approach which includes regularly auditing your internal processes to see where other obligations may apply.

The following is a (non-exhaustive) list of additional compliance obligations imposed by Australian Law which may apply to your business/NFP:

➲ Non-privacy-policy related aspects of the Privacy Act 1998 – for example, APP8 – Direct Marketing; APP11 – Security of Personal Information. For more information, read this Guide to the APP’s;

Notifiable Data Breach Scheme; and

➲ The SPAM Act.

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 considered "personal information" under Australian Privacy Law?

What is considered "personal information"?

Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

➲ Whether the information or opinion is true or not; and

➲ Whether the information or opinion is recorded in a material form or not.

The above definition of Personal Information is quite broad, and can include Internet Protocol (IP) addresses, Unique Device Identifiers (UDIDs) such as for a mobile phone or tablet, and other unique identifiers in specific circumstances.

Location information, may also be covered because it can reveal user activity patterns and habits.

If you are unsure whether you are using Personal Information please refer to this guide issued by the OAIC, and if still unsure please seek independent Legal Advice.

Important: If you trade in, or use Personal Information to sell advertising, including via an app, you’ll likely fall under the Privacy Act.

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 does “trade in personal information” mean under Australian Privacy Law?

What does “trade in personal information” mean?

A business or NFP is “trading” in Personal Information if it collects from or discloses to someone else, an individual’s Personal Information for a benefit, service or advantage.

A benefit, service or advantage can be any kind of financial payment, concession, subsidy or some other advantage or service.

For example: Buying a mailing list without first getting the consent of all the individuals on that list, or disclosing customer details to someone else for some commercial (monetary or otherwise) gain.

If you trade in Personal Information you will have to comply with the Australian Privacy Principles in the Privacy Act.

Complying with the Privacy Act does not prevent you from collecting Personal Information for your business needs, but it does mean you must follow the rules about how to handle that information.

If you are unsure whether you are using Personal Information to sell advertising, you should seek Independent Legal Advice.

Exemptions may apply where “consent” has been obtained for small businesses with turnover of $3 million or less that are not considered an APP entity for any other reason (refer to the second set of criteria discussed above). However even in this case, your should have an easy-to-read Privacy Policy so that you can ensure that you obtain clear informed consent as required.

In order to avoid any question regarding whether valid “consent” has been obtained in accordance with the requirements of the Privacy Act, it is recommended that you be as clear and transparent as possible in your Privacy Policy about what Personal Information you are collecting, what you are doing with it, and the reasons why.

It’s also highly recommended you request that the user actively indicate consent by having them take an affirmative action such as ticking a checkbox or clicking a button. This can be facilitated by adding a checkbox with a link to the privacy policy to your data collection forms, and by using something like a site banner to alert and collect your users’ consent to tracking technologies such as cookies.

iubenda’s Cookie Solution makes setting up a site banner and linking to the Privacy Policy pretty easy. You can read more about the Cookie Solution here as well as how to customize your site banner here.

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.

How can we keep our Privacy Policy globally compliant + updated?

How to keep your Privacy Policy globally compliant + updated!

Blue Ocean Law Group℠ are innovative Counsel [iC]℠ and Australian Legal Network Partner for iubenda.

We use iubenda for our own Globally-compliant Privacy Policy, and are an Affiliate -> Get 10% off your subscription with this link!

Alternatively if you do not want to subscribe, you can generate your own subscription-free Privacy Policy as an individual legal document or as part of our website bundle via our Legal Documents Portal.

Both Privacy Policies are designed to exceed your legal needs.

iubenda (in our view) does a better job at creating a Privacy Policy which provides a more visual + interactive client experience.

How does iubenda's Privacy Policy solution help you to comply with the specifics of Australian Law?

Click this link to access our original article which is published on iubenda's website.

The original article includes a table created by Blue Ocean Law Group℠ listing the relevant Australian Privacy Principle (APP) requirements, the related iubenda feature and comments on how it applies.

warning: a privacy policy is not a set and forget document!

Keeping you Privacy Policy up to date and compliant with the latest changes in global privacy law is only the first part of the process.

As your business or NFP's circumstances change, your Privacy Policy needs to be audited against your Internal Business Processes (practices, procedures and documents – as well as what is actually done, in other words, your Privacy Culture).

As Australia moves towards the standards set by the EU, including potentially larger fines + regular audits, legal reviews will become even more important.

Please contact us to discuss a legal review of your Privacy Policy v. Internal Business Processes + Privacy Culture.

consequences of non-compliance with Australian Privacy Law

There are significant potential penalties that can be imposed for non-compliance, and for repeat breaches, including enforceable undertakings and fines of up to $1.7 million per violation.

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 Preliminary Steps do you recommend we take before Starting a New Business/Investing/Doing Business in Australia?

Step 1️⃣: Proactively Protect your IP/Brand

We strongly recommend you take preliminary steps to protect your Intellectual Property/Brand or ensure that the IP/Brand of the business in which you are considering investing has a minimum level of protection.

This will assist you to quickly identify any potentially similar business names which may cause brand confusion, and may afford you the opportunity to reconsider your business name so that it is more unique.

This can include quick inexpensive online tasks via the Australian Securities & Investments Commission's (ASIC) website such as:

Checking the availability of your business name; and

✅ Registering you business name. ; or

✅ Reserving your company name.

Reservation  period:  A company name is reserved for a period of 2 months from the date of ASIC's approval.

Extension of name reservation: An application for an extension of name reservation for a further period of up to 2 months can be lodged with ASIC prior to the reservation expiry date.

Reasons for the extension must be provided in detail on the form or in an annexure.

An application for extension will only be granted if ASIC finds your reasons acceptable.

If insufficient reasons are provided the reservation extension will be rejected by ASIC.

Only in very exceptional/extenuating circumstances will ASIC allow more than 2 extensions to be granted.

Step 2️⃣: Secure your .com.au/.net.au domain/s

We also recommend that as soon as you qualify (refer below) you take additional steps to protect your Intellectual Property/Brand by securing your Australian web domain (as well as similar web domains).

Am I eligible to register .com.au and .net.au domain names?

Important: The law regulating the right to acquire and renew .au domain names has recently been amended.

Until we can review the changes and update this FAQ to reflect the current legal position, we strongly recommend that you contact our legal team for advice.

“In accordance with (recently amended) Australian Domain Name Policy, to be eligible to register .com.au and .net.au domain names, registrants must be classified as one of the following:
✅ An Australian registered company;
✅ Trading under a registered business name in any Australian State or Territory;
✅ An Australian partnership or sole trader;
✅ A foreign company licensed to trade in Australia;
✅ Be an owner of an Australian Registered Trademark;
✅ An applicant for an Australian Registered Trademark;
✅ An association incorporated in any Australian State or Territory;
✅ An Australian commercial statutory body”

Step 3️⃣: Start to learn about your options and the Australian Regulatory Regime

We strongly recommend that you commence the process of learning + understanding your options regarding doing business in Australia by using our free resources.

For example:

Foreign Investment +/or Doing Business in Australia ➲ Primer + Quiz*

Intellectual Property [IP] Law ➲ Basic Quiz (Level 1: Australian IP)

Intellectual Property [IP] Law ➲ WIPO Quiz (Level 2: Global IP)

Once you have completed our online Primer + Quizzes, we recommend you contact us with your detailed queries.

Note: Australia's Foreign Investment Review Board (FIRB) Regime has been significantly amended as at 1 January, 2021

*[our Foreign Investment +/or Doing Business in Australia Primer + Quiz has not yet been updated to incorporate these recent FIRB changes].

Step 4️⃣: Consider making an application for an Australian Registered Trademark.

We strongly recommend that you contact us to assist you to engage the services of a registered trademark attorney.

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 Australian Tax Office (ATO) objection time limits?

ATO Decisions you can object to and time limits

By law you can object to tax assessments (except for the Diverted profits tax assessment) and most other decisions the ATO make, within the appropriate time limits.

You can object to most decisions about:

➲ Australian business numbers (ABNs);

➲ Cash flow boost;

➲ Excise;

➲ Fringe benefits tax (FBT);

➲ Fuel schemes;

➲ Fuel tax credits;

➲ Goods and services tax (GST);

➲ Income tax;

➲ JobKeeper payment;

➲ JobMaker Hiring Credit;

➲ Luxury car tax (LCT);

➲ Penalties and interest;

➲ Resource rent taxes (petroleum and minerals);

➲ Single Touch Payroll (STP);

➲ Superannuation;

➲ Superannuation – reviewable decisions;

➲ Wine equalisation tax (WET).

Time limits

Time limits for lodging objections vary from 60 days to four years.

The time starts from the date the assessment or notice of decision was given to you.

This is generally taken to be the date the ATO's assessment, notice, ruling, demand, decision or other correspondence was delivered to you or your representative in the usual course of the post.

If the final lodgement day falls on a non-business day, your objection can be lodged on the next business day.

Extension of time to object

If you're outside the time limit, you can ask for an extension of time by including a written request with your objection.

The ATO will process a request for an extension of time, and notify you in writing of the outcome.

If the ATO accept your request, they will consider your objection.

If the ATO refuse, they will explain your right to review their decision.

See also:

➲ PS LA 2003/7 How to treat a request to lodge a late objection

Source: For detailed + current information regarding the time limit applicable to your objection please refer to ATO Website - Decisions you can object to and time limits

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 does a NOTICE OF ENQUIRY REGARDING WHEREABOUTS OF ORIGINAL WILL look like?

In making general enquires regarding the whereabouts* of the Will you can use the following example^ as a template

NOTICE OF ENQUIRY REGARDING WHEREABOUTS* OF ORIGINAL WILL
Would any solicitor, firm or person holding or knowing the whereabouts* of a Will or other testamentary document of <insert name of the deceased> late of <insert deceased's address>, who was born on <Deceased's Birth Date> and who died on <Date Deceased>.
Please contact: <Your Name>, <Relationship to the Deceased/Company or Law Firm Name>. Phone: <Your Phone #>. Email: <Your email>.

^ Source: City of Sydney Law Society email to members: NOTICE OF ENQUIRY REGARDING WHERABOUTS* OF ORIGINAL WILL

*Sometimes spelled as WHERABOUTS!

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.

How do I conduct a thorough search for any Will/s or other testamentary documents?

Before making an application to your local Supreme Court for Probate or Letters of Administration

It is important to conduct a thorough search for any Will/s or other testamentary documents amongst the deceased's:

✅ Personal papers;

✅ Email accounts (it is almost certain, at least in recent times that most lawyers will send a DRAFT copy of the Will for review via email before it is signed); and to

✅ Contact the deceased's bank/s to determine whether they held a safety deposit box;

✅ Create a master list of all of the deceased's close relatives + contacts, + known lawyers + other professional advisors so enquiries regarding the existence and/or location of a Will or other testamentary documents can be made; as well as the ✅ Main locations where they have lived + worked throughout their life.

In conducting the searches, it is very important to:

✅ Keep written records of your extensive enquiries as evidence which may need to be provided to the Court in the event that no Will can be located.

In making general enquires you can use the following example^ as a template

NOTICE OF ENQUIRY REGARDING WHEREABOUTS* OF ORIGINAL WILL
Would any solicitor, firm or person holding or knowing the whereabouts* of a Will or other testamentary document of <insert name of the deceased> late of <insert deceased's address>, who was born on <Deceased's Birth Date> and who died on <Date Deceased>.
Please contact: <Your Name>, <Relationship to the Deceased/Company or Law Firm Name>. Phone: <Your Phone #>. Email: <Your email>.

Online Will Registries

Note: We recommend you screen capture all online search results.

Australia-wide

The Will Registry

🔎 Free to Search (Need minimum: Name + Date of Birth).

Note: Whilst the principle of one registry for all Australian Wills is a great idea, the business model used by this website involves a requirement to pay ongoing membership fees which does not make the proposition compelling and consequently the service has not gained widespread adoption and usage.

ACT

🔒 A.C.T Supreme Court [Will Repository].

$125 deposit, $46 withdraw.

Prices effective as at 1 August 2020.

ACT Law Society

www.lawsocact.asn.au

NSW

🔒 NSW Trustee + Guardian

$29 one-time fee for a single document; $49 one-time fee for multiple documents.

Prices current as at 19 November 2020.

Contact the Office of the NSW Trustee and Guardian and ask if the Will is in their Will Safe repository.

🔎 You can submit an enquiry online.

🔎 City of Sydney Law Society - Missing Wills or other Documents page

Cost $40 (Members Free).

🔎 Submit a request to the Supreme Court of NSW to search the Probate Office as they maintain a Will registry, where any person can voluntarily deposit their Will for safe keeping – fees apply.

NSW Law Society (Safe Custody)

www.lawsociety.com.au

🔎 From 2002 until 28 March 2014 the NSW Registry of Birth Deaths and Marriages (BDM) operated a Wills Register, however this service is no longer in operation.

They maintain historical information.

NT

🔒 N.T. Public Trustee

“You can store your Will for free at the Public Trustee office in a specially maintained vault.”

NT Law Society

www.lawsocietynt.asn.au

QLD

QLD Law Society

www.qls.com.au

SA

SA Law Society

www.lawsocietysa.asn.au

TAS

TAS Law Society

www.taslawsociety.asn.au

Vic.

🔒 The Victorian Will + Power of Attorney Registry

Anyone in Victoria can register information about where they keep their Will + Power of Attorney documents at no charge.

🔎 There is also the option to physically store originals for free.

Law Institute of Victoria

www.liv.asn.au

WA

🔒 W.A. Will Bank

Free service operated by the WA Public Trustee.

WA Law Society

www.lawsocietywa.asn.au

Contact our legal team to conduct further searches

Our legal team can be retained to send correspondence to other legal practitioners asking if they hold a Will for the deceased, as well as to conduct further specialised searches such as placing an advertisement in the “lost Wills section” of their local law society monthly journal:

For example:

🔎 LSJ: Law Society Journal of NSW; or the

🔎 QLD Law Society Proctor Journal.

^ Source: City of Sydney Law Society email to members: NOTICE OF ENQUIRY REGARDING WHERABOUTS* OF ORIGINAL WILL

*Sometimes spelled as WHERABOUTS!

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.

Why does Blue Ocean Law Group℠ use a *.law website domain?

What is a *.law web domain?

⚖️ *.law is a top-level-domain (TLD) that aims to:

Promote trust in the professional legal community by creating a:

✅ Verified;

✅ Exclusive; and

✅ Reserved online space in which only accredited lawyers and law firms can establish a comprehensive digital brand.

✅ Website users can have confidence they are dealing with an authorised and licensed lawyer/law firm.

✅ *.law offers effective branding to those in the legal community, with the ability to secure a domain name that clearly communicates who you are + the legal resources you provide.

All about *.law domain names

Source: join.law - Why *.law?

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