Welcome Message

Welcome to the Blue Ocean Law Group
Welcome to the Blue Ocean Law Group.

Ahoy there!

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

We are Different on Purpose

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

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

'Every day, clients are faced with a lot of boring stuff - a lot of brown cows - but you can bet they won't forget a Purple Cow!
Purple Cow describes something phenomenal, something counterintuitive and exciting and flat-out unbelievable.
In his best seller, Seth Godin urges you to put a Purple Cow into everything you build, and everything you do, to create something truly noticeable.
It's a manifesto for anyone who wants to help create products and services that are worth marketing in the first place.'

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

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

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

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

As you explore this [700+] page website, I recommend you start by:
1️⃣ Clicking on the blue switch on our home page to toggle between 'blue and red ocean mode';

2️⃣ Watching the Blue Ocean Strategy® videos; and

3️⃣ Taking our Free Legal Health Checks ❤️ [Australia].
I personally hope that you discover tons of value and start to change your opinion about lawyers for the better.

Our Expansion Plans ... A Work in Progress!

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

Tip #1 ➲ Google Translate

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

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

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

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

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

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

Credits:

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

State of California Bar Number: 346590

What is Blue Ocean Law Group's ➲ 'Elevator Pitch' ... ?

Our 'Elevator Pitch' ...

➲ Why we offer Free Legal Health Checks!

"Before a client needs to deal with any major life event or disputes (the inevitable vicissitudes of both business & personal life) ideally they need to consult a lawyer to ensure they get their legal affairs in order.
The evidence suggests that even though most clients know it is important, more than 70% typically deliberately avoid engaging a lawyer.
Instead they either do nothing hoping for the best or do their best to try to patch together a subpar solution themselves.
If personal & business legal affairs are allowed to persist in disarray, this is a surefire recipe for the possibility of a devastatingly expensive, long and emotionally draining legal battle.
Because once problems arise it is often too late to take proactive measures.
So, Blue Ocean Law Group have built a secure online solution that helps clients obtain initial guidance without the need to speak to a lawyer, using our Free Legal Health Checks [Australia] for both personal and business matters, together with our market-leading [700+] page website providing prospective Clients with [Self-Service] Legal Documents, Legal Wizards, Quizzes, FAQ & innovative solutions 24/7 from anywhere on any device.
Our Legal Team provide support as and when it is needed."
⭐️ We are in the process of 'Charting New Markets' in New Zealand & California.

Source: Blue Ocean Opportunities in the Australian Legal Profession

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

Credits:

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

State of California Bar Number: 346590

What does a Virtual Internship involve and how long does it last?

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

Collaboration at your Own Direction

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

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

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

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

Virtual Intern Objectives

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

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

⭐️ Beneficial Mentorship;

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

⭐️ Legaltech skill development including an iterative development mindset; and

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

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

Learning to be a Proactive Lawyer

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

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

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

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

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

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

Tomorrow's Lawyers: An Introduction to Your Future

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

"Tomorrow's Lawyers identifies new opportunities for lawyers, new ways of helping clients and the community.
It enjoins its readers to become involved in building the systems that will replace outmoded forms of legal work.
It argues that it is both a privilege and an obligation for tomorrow's lawyers to embrace and bring about change.
A must-read for legal undergraduates, aspiring and young lawyers, senior practitioners, leaders in law firms and legal businesses, law professors and law teachers."

Proceeding in this way requires a mammoth effort.

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

How long does a Virtual Internship last?

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

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

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

The following links are a great place to start:

FAQ: Volunteer Virtual Internship + PLT Placement Mentoring

Mentee Manual: Our Top 10 Ideas to Get Started!

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

How do I apply for a Virtual Internship/PLT Placement?

Steps to Decide Whether to Apply ...

1️⃣ Understand What is Involved

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

2️⃣ Conduct your Own Due Diligence

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

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

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

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

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

Here are some links to start:

FAQ: Volunteer Virtual Internship + PLT Placement Mentoring

Mentee Manual: Our Top 10 Ideas to Get Started!

3️⃣ Tomorrow's Lawyers: An Introduction to Your Future

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

"Tomorrow's Lawyers identifies new opportunities for lawyers, new ways of helping clients and the community.
It enjoins its readers to become involved in building the systems that will replace outmoded forms of legal work.
It argues that it is both a privilege and an obligation for tomorrow's lawyers to embrace and bring about change.
A must-read for legal undergraduates, aspiring and young lawyers, senior practitioners, leaders in law firms and legal businesses, law professors and law teachers."

4️⃣ Are you an Enterprising + Curious Self-Starter?

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

Our Virtual Internships are unstructured.

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

5️⃣ Your Preferences

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

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

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

We embed lawyer logic into each process.

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

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

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

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

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

7️⃣ Prepare + File your Application

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

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

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

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

8️⃣ Informal Interview

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

🔥 BONUS ➲ Questions to Ask Prospective Employers

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

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

Potential Questions to Ask a Prospective Employer

➲ Do you have a long-term strategy?

➲ What will legal service look like in 2035?

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

➲ What are you preferred approaches to Alternative Sourcing?

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

➲ Do you have a Research & Development Capability?

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

Is a Virtual Internship open to High School Students?

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

Our standard response to such requests is as follows:

"Thank you for being so interested in work experience at Blue Ocean Law Group.
Unfortunately, as a small boutique start-up Digital Law Firm we don’t have the capacity to accommodate in-person Work Experience Placements for High School Students.
If you are interested in learning more about the law here is a link to an article I wrote that aims to provide some initial guidance that can be followed anytime online.
We wish you the best in your future career.
Kind regards,"

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

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

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

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

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What is NewLaw and why does it Matter?

What is #NewLaw?

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

NewLaw is a mindset. It is a movement. NewLaw’s enemy is the adage: “because that’s the way we’ve always done it.”
Whether coined by Eric Chin, see Post 242, or Jordan Furlong, see Furlong, “An Incomplete Inventory of New Law,” Law21, May 13, 2014, the original definition circa 2013 was: “any model, process, or tool that represents a significantly different approach to the creation or provision of legal services than what the legal profession traditionally has employed.”…
The concept has evolved to focus on the source of true power and change in the profession – people. Models, processes, and tools fail if not created, or at least embraced, by the people who power the legal system. NewLaw fails without open and informed minds. The form of output, whether a new business model, regulation, or legal technology, is secondary. In fact, strike the first part of the 2013 definition and we capture this nuance for today’s understanding.
NewLaw: A significantly different approach to the creation or provision of legal services than what the legal profession traditionally has employed.

What is a True NewLaw Firm?

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

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

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

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

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

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

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

What they are doing is low-risk.

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

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

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

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

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

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

What is Blue Ocean Strategy® ?

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

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

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

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

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What are my Client Rights & Responsibilities ➲ U.S. based legal matter?

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

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

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

Statement of Client’s Rights

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

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

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

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

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

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

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

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

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

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

Statement of Client’s Responsibilities

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

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

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

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

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

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

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

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

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

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

Download a Copy of the California Rules of Professional Conduct

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

Contact us for Clarifications

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

Credits:

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

State of California Bar Number: 346590

What to expect when working with a California Licensed Attorney on your U.S. based legal matter?

What to Expect from Your California Licensed Attorney

You can expect your attorney to:

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

What to Expect Regarding Fees and Billing

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

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

Read more

Here are key things to know about fees and billing:

How a lawyer decides what amount to charge

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

How often your attorney will bill you for services

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

Types of fee arrangements

Attorneys use different types of fee arrangements.

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

  • Fixed fee or standard fee.
    Commonly used for routine legal matters, such as preparing a simple will. Before agreeing to a fixed fee, find out what it does and does not include, and if any other charges may be added to the bill.
  • Hourly fee, which will can vary among lawyers.
    Ask the lawyer to estimate the amount of time your case will take, so you understand what your total costs may be. Remember that circumstances may change, and your case may require more hours than the lawyer initially expected.
  • Retainer fee.
    A retainer can mean different things to different people. Make sure you understand your retainer agreement.

          Read more

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

          Read more

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

What you should know about a fee agreement

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

          Read more

Additional costs you may have to pay

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

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

Read more

What to do if you can’t pay

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

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

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

How to Work with Your Lawyer

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

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

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

How to Avoid Problems with Your Attorney

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

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

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

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

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

Further Reading

About retainer fees

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

About contingency fees

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

About fee agreements

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

Additional costs you may have to pay

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

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

Contact us for Clarifications

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

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

Credits:

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

State of California Bar Number: 346590

What is Client Legal Privilege (CLP) a.k.a Legal Professional Privilege in Australia?

What is Client Legal Privilege?

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

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

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

Advice Privilege

Section 118 of the Uniform Evidence Acts in Australia provides that evidence is not to be adduced if, on objection by the Client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the Client and a lawyer; or
(b) a confidential communication made between two or more lawyers acting for the Client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the Client or the lawyer;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the Client.

Litigation Privilege

Section 119 of the Uniform Evidence Acts in Australia establishes a Litigation Privilege, protecting confidential communications between:
⚖️ A Client and another person, or
⚖️ A lawyer acting for a Client and another person; or
⚖️ The contents of a confidential document that was prepared ...
For the dominant purpose of a Client being provided with legal services related to an Australian or overseas legal proceeding or anticipated legal proceeding in which the Client is or may be a party.

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

The Privilege belongs to the Client

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

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

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

Sources:

Law Council of Australia

Uniform Evidence Law ALRC Report 102/14

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What are the Attorney-Client Privilege (A-C) and the Attorney Work Product Doctrine in the U.S.?

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

⚖️ The Attorney-Client Privilege; and

⚖️ The Attorney Work Product Doctrine.

What is the Attorney-Client Privilege?

Attorney-Client Privilege refers to a legal privilege that works to keep confidential communications between an attorney and their client private.
Communications made to and by a lawyer in the presence of a third party may not be entitled to this privilege on grounds that they are not confidential.
The privilege can be affirmatively raised in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testify under oath. A client, but not a lawyer, who wishes not to raise attorney-client privilege as a defense is free to do so, thereby waiving the privilege.
This privilege exists only when there is an attorney-client relationship.  
Under the Model Rules of Professional Conduct, the attorney-client privilege exists for a potential client. Under Togstad v. Vesely, 291 N.W.2d 686 (1980), a non-client can claim to be a prospective client if:
⚖️ The non-client seeks legal advice,
⚖️ Then the non-client reasonably relies on that advice as legal advice, and 3) the attorney does not attempt to dissuade the non-client from relying on the advice.
⚖️ The non-client is considered a prospective client under Togstad, then the attorney-client privilege will extend to that prospective client.

What is the Attorney Work Product Doctrine?

Work Product includes all material prepared in anticipation of litigation.
Generally, Work Product is privileged, meaning it is exempt from discovery.
However, there are exceptions.
Work Product is divided into two categories: ordinary and opinion.
Ordinary Work Product is the result of gathering basic facts or conducting interviews with witnesses, and is discoverable if there is a showing of substantial need, like a witness that becomes unavailable.
Opinion Work Product is the record of an attorney’s mental impressions, ideas or strategies, and is almost never subject to discovery.  
The presumption of non-disclosure is a rebuttable one.

Sources:

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

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

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

How do I maximise value whilst protecting my legal position?

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

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

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

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

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

Where can I Manage my Subscriptions and Download my Invoices/Receipts?

Your Subscription Portal

How do I make an Affidavit in NSW?

How do I make an Affidavit in NSW?

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

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

Mandatory Requirements

You MUST:

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

You or the witness MUST:

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

Following this, the witness MUST sign:

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

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

The Affidavit MUST include:

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

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

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

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

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

Annexures to an Affidavit

See UCPR 35.6 for more information.

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

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

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

What is the Reasonable Use Policy for Titan Lawyer [AI]?

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

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

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

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

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

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

1️⃣ Immediately upgrade your Subscription Level; or

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

titan lawyer [ai] reasonable use policy

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

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

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

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

clear cases of excessive use

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

What does US expert travel industry advice have to say about Rental Car Insurance?

The Truth about Rent Car Insurance You Need to Know!

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

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

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

The introduction to the blog article is extracted below:

"No matter how often I cover the problems that come with collision damage under car rental insurance, consumers continue to share their frustrations.
A reader recently emailed me:
'I'm interested in finding a complete bumper-to-bumper, 'drop off the keys at the counter' car rental coverage when I travel. I recently thought I had complete coverage though a credit card, but when my car suffered a small dent, the car rental company flat-out refused to document that it actually lost income from having the car rental in the shop (which took three weeks to repair a small dent). I was left with responsibility.'
This experience is uncommon, but not unique.
Car rental companies desperately want you to buy their collision damage waiver, or CDW (sometimes also known as loss damage waiver, or LDW), and will go to great lengths to make you pay for even the smallest damages if you don't.
Here's what you need to know before you shell out for car rental insurance on your next vacation ..."

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

The 1-way to drop your keys and forget it!
CDW Insurance is ridiculously overpriced
You'll pay up-front for all damage
Damage is more than fixing a dent
You need General Liability Protection
Alternatives to Rental Company Collision Damage Waivers
1️⃣ Pay with your Existing Car Insurance;
2️⃣ Use Credit Card Benefits;
3️⃣ Third-Party Car Rental Insurance;
The Uncertainty Principle

key takeaway

"The takeaway from all this: No alternative source of collision damage coverage-your auto insurance, your credit card, or a third party-completely isolates you from risk. Lots of travelers successfully rely on lower-cost alternatives to CDW without encountering any problems, sure.
Occasionally, however, your own insurance, credit card, or third-party policy may not cover an unusual charge a rental company might impose.
If you're unwilling to accept any risk at all, you might want to buy that overpriced CDW. For most travelers and circumstances, credit card or third-party coverage is sufficient, and primary coverage is a lot better than secondary."

Important Notice:

This FAQ is intended for general interest + information only.

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

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

Will the Rental Car Provider refuse to give you the car if you don't have an International Driving Permit?

Do you need an International Driving Permit (IDP)?

Some car Rental Car Companies might ask for an International Driving Permit (IDP) as a part of their standard policy, even if having it is not necessary for that country.
Other countries, such as Botswana or Saudi Arabia, require an IDP when hiring a rental car.
Always double-check with your car rental company’s terms and conditions before you rent a car to avoid unpleasant surprises during your trip.
You can only obtain an International Driving Permit in the country where your driver’s license was issued.
That’s why it’s crucial to get the permits before you leave for your trip, otherwise it may become impossible to rent a car (or drive at all) overseas.

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

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

Source: upgradedpoints.com (Last updated on June 5, 2023)
An International Driving Permit (IDP), often referred to as an international driving license, is a translation of a domestic driving license that allows the holder to drive a private motor vehicle in any country or jurisdiction that recognises the document.
International Driving Permits are governed by three international conventions: the 1926 Paris International Convention relative to Motor Traffic, the 1949 Geneva Convention on Road Traffic, and the 1968 Vienna Convention on Road Traffic. When a state is contracted to more than one convention, the newest one terminates and replaces previous ones.
IDPs are issued by a national government directly, or through a network of AIT/FIA organizations or by any association duly empowered thereto by such other Contracting Party.[1]
For the latter case those issuing organizations are mostly automobile associations,[2] such as American Automobile Association[3] in the United States, Norwegian Automobile Federation[4] in Norway and Riksförbundet M Sverige[5] in Sweden. As there are many unofficial sellers on the internet, the AIT/FIA has created an approved directory to all IDP issuing organizations in the world.[6]
To be valid, the IDP must be accompanied by a valid Driver's license issued in the applicant's country of residence.
An IDP is not required if the driver's domestic licence meets the requirements of the 1949 or 1968 convention; the domestic licence can be used directly in a foreign jurisdiction that is a party to that convention.[7]
In addition, other arrangements eliminates the need of an IDP in some countries, such as the European driving licence valid within the European Economic Area (EEA) as well as member states of the Association of Southeast Asian Nations (ASEAN) with each other.[8]
A major tourist destination that doesn’t recognize the International Driving Permit is the People’s Republic of China. In order to drive in China, foreign tourists need to obtain a Chinese driving license. Contact your local Chinese embassy for details.

Important Notice:

This FAQ is intended for general interest + information only.

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

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

Does your Australian Credit Card offer complimentary car rental "excess" insurance?

Canstar Research reviewed Australian Credit Cards listed on our database, and found that there are a number of companies that do offer complimentary rental car excess cover with their cards.
Bear in mind that some of these providers offer complimentary rental vehicle excess cover for overseas travel only.
It’s also important to remember that there are eligibility criteria that have to be met for this cover to kick in, which could include things such as charging all or part of travel costs to the card.
Before committing to any particular credit card, check upfront with your provider and read the Target Market Determination (TMD), Key Facts Sheet and other important policy documents so you understand details about any relevant car excess cover.
  • American Express
  • ANZ
  • Bank of Melbourne (Overseas Only)
  • BankSA (Overseas Only)
  • Bendigo Bank
  • Beyond Bank
  • BOQ
  • Commonwealth Bank (Overseas Only)
  • Great Southern Bank (Overseas Only)
  • Heritage Bank
  • HSBC
  • ING (Overseas Only)
  • NAB
  • Qudos Bank (Overseas Only)
  • St.George Bank (Overseas Only)
  • Suncorp Bank
  • Westpac

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

General Liability Protection for your Car Rental ➲ Are you covered? For what amount? Is it enough?

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

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

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

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

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

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

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

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

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

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What costs are normally claimed by the Rental Car Provider as "Associated Losses" in the United States?

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

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

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

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

⚖️ Claim Administrative expenses associated with the claims process.

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What are some alternative Rental Car Insurance coverage options in the United States?

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

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

Start by considering the following possible alternatives:

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

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

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

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

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

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

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

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What Steps can I take to help protect myself from Cyber Fraud?

Client Cyber Alert Letter

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

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

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

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

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

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

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

Together we can help prevent Cyber Fraud

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

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

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

Can I pay my legal bill via monthly instalments?

A: Yes

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

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

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

Contact us directly to apply.

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

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

What consumer guarantees apply in Australia?

Australian Consumer Guarantees

Australian Consumer Guarantee means?

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

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

Who is a Consumer?

From 1 July, 2021:

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

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

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

Scope of Protection

➲ Bundled products and services;

➲ Gifts with proof of purchase;

➲ Sale items;

➲ Online products and services bought from Australian businesses; and

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

Exceptions do apply.

Consumer rights

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

⚖️ Repair, replacement or refund

⚖️ Cancelling a service

⚖️ Compensation for damages & loss.

Consumer Product Guarantees

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

Products must be of acceptable quality, that is:

🔎 Safe, lasting, with no faults;

🔎 Look acceptable; and

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

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

Products must:

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

✅ Match any demonstration model or sample you asked for;

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

✅ Come with full title and ownership;

✅ Not carry any hidden debts or extra charges;

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

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

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

Consumer Service Guarantees

Services must be:

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

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

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

Source: ACCC website.

Important Notice:

This FAQ is intended for general interest + information only.

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

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

Can I create my Will myself or do I need to seek legal advice?

⩴ Captain [Cicero] will see you now …

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What are the consequences of Bankruptcy?

What assets can you keep in Bankruptcy?

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

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

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

Work-Related Tools/Equipment

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

Transport

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

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

Cash

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

Personal Property

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

✅ Household goods – appliances, furniture, clothing

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

✅ Assets you hold on trust for someone else

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

✅ Personal injury claims and compensation

✅ Life insurance policies

Your Home

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

Your Income (if any) during Bankruptcy

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

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

Which debts are not covered by bankruptcy?

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

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

❌ Child Support debts;

❌ HELP + HECS debts (Student Loans);

❌ Debts incurred after your Bankruptcy commences; and

❌ Debts incurred by fraud.

Your Statement of Affairs (SOA)

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

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

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

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

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

Further reading: The Consequences of Bankruptcy

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

How do I deal with my uncertain future 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.

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

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

🔑 Key Takeaways

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

Example: Australian lawyer working for Australian law firm from Canada

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

🥊 Alternative Dispute Resolution

Learn about the global opportunities emerging in Alternative Dispute Resolution.

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

It is still useful to understand the opportunity.

🚀 Space Law

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

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

🔗 Smart Contracts / Blockchain-related Law

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

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

🔒 Privacy Law / Digital Life

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

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

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

💡 Augmented Reality + AI

Augmented reality + AI are other areas to explore.

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What is Key Person Insurance or Buy/Sell Insurance?

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 Blue Ocean Strategy®?

How do I 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 a trip there every few years to ensure the details are kept as current as possible.

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

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

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

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

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

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

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

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

Create + Update your Smarter Digital Legacy Plan at your convenience

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

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

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

How secure is the Digital Asset Safe Custody Vault?

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

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

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

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

3-levels of encryption to store + read your data

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

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

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

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

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

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

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

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

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

Mandatory two-factor authentication

Helping You Protect Yourself

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

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

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

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

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

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

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

Hybrid Storage™

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

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

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

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

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

Hardware Wallet

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

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

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

Where can I find the Digital Vault User Guide?

The Digital Vault User Guide

Download Digital Vault User Guide

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 is Value Innovation?

Value Innovation: The Cornerstone of Blue Ocean Strategy

Defy the Dogma: The Cost-Value Trade-Off

It is conventionally believed that companies can either:

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

2️⃣ Create reasonable value at a lower cost.

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

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

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

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

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

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

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

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

Source: blueoceanstrategy.com

The ERRC Grid

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

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

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

Source: blueoceanstrategy.com

Eliminate / Reduce

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

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

Raise / Create

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

A few examples include the following:

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

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

✅ Physical + Digital Safe Custody Vault options.

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

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

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What are the benefits of buying legal documents from us?

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

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

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

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

What happens?

🧩 If and when you have a legal question?

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

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

🧩 If there is a mistake in the legal document?

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

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

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

General Answer

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

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

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

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

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

The valuable feedback we have  obtained is that:

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

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

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

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

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

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

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

List of Benefits:

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

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

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

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

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

✅ No referral fees built into the business model;

✅ Lower overall legal costs;

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

✅ Legal Professional Privilege; and

✅ Enhanced Confidentiality.

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

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

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

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?

What is a Free Legal Health Check? ✅

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

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

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

How does it work?

1️⃣ Complete our Intelligent Questionnaire:

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

2️⃣ Automated Report:

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

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

3️⃣ Deliver Solutions:

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

What does it cover?

🧩 Estate planning;

🧩 Marriage and de facto relationships;

🧩 Tax structuring;

🧩 Dispute avoidance/resolution;

🧩 Investment properties;

🧩 Business sale/purchase;

🧩 Business financing;

🧩 Co-ownership arrangements;

🧩 Managing staff;

🧩 Commercial terms;

🧩 Websites and intellectual property;

🧩 Regulatory compliance.

Why go through this process?

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

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

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

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

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

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

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

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

Credits:

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

What are creditors' debt collection guidelines?

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

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 are my rights after the express warranty has expired?

Australian Consumer Guarantees

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

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

All may not be lost if your express warranty has expired

For example:

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

The express warranty does not limit or replace them.

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

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

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

Do I need a Privacy Policy?

Legal Background ➲ Australian privacy act 1988 (Comm.)

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

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

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

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

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

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

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

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

Click the below link to access the online guide:

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

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

Credits:

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

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

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

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

Australian Takedown Notice Checklist ➲ Copyright Infringement

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 ...

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 are the Australian Privacy Principles (APP's)?

Click here to download ...

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

Fair Dealing v. Fair Use ➲ Where the website is hosted matters

Increasingly, Australian websites are hosted in the USA 

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

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

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

A: Yes.

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

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

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

In the cartoon, hordes of German, Norwegian, French, English, and American authors surround a publisher who republishes their newly-created works without attribution or royalties in a foreign country, as international law then allowed.

Of note is W. S. Gilbert, fifth from the right in the front row, as the many unauthorised or "pirate" productions of H.M.S. Pinafore caused him and Arthur Sullivan to première The Pirates of Penzance in America, to at least gain the initial profits there before anyone else could exploit it, and the title and subject of The Pirates of Penzance is sometimes - although somewhat dubiously in my opinion - considered to partially be a reference to the issue of pirate productions of their works. Other authors shown include Mark Twain, Tennyson, Robert Browning, F. C. Burnand, Émile Zola, Jules Verne, Victorien Sardou, Wilkie Collins, Oliver Wendell Holmes, Sr., as well as many others.

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.

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.

How do I negotiate my civil dispute whilst protecting myself?

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.

What is the difference between an Affidavit and a Witness Statement?

An Affidavit is sworn evidence (generally sworn either on the bible or other religious text^ or by giving a non-religious affirmation) while a Witness Statement is unsworn.

^ Although a common practice. It is no longer necessary for a religious text to be available when swearing an Affidavit in NSW due to amendments to the Oaths Act introduced by Schedule 2 of the Identification Legislation Amendment Act 2011) and the Oaths Regulation 2011 (NSW).

Maker of the Witness Statement Required to Formally Adopt the Statement in the Witness Box

Another important difference between an Affidavit and a Witness Statement is that before the contents of a Witness Statement can become formal evidence as to the truth of the matter, the maker of the statement MUST adopt the statement in the witness box after being formally 'sworn in'.

Filed Affidavit becomes evidence once it is formally 'read' in Court by Counsel seeking to rely upon the Affidavit

The maker of the Affidavit, known as the deponent, still needs to attend Court in most cases as they will usually be required for cross-examination.

Credits:

This FAQ is extracted from page 201 of the Practitioner's Guide to Civil Litigation 4th edition published by the NSW Law Society (Civil Litigation Committee).

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What are the Certification Requirements in Victorian Courts?

Part 4.1 of the Civil Procedure Act 2010 requires 2 Certificates to be filed on commencing a civil proceeding:

1️⃣ An Overarching Obligations certificate (to be made by parties); and

2️⃣ A Proper Basis Certificate (to be made by lawyers).

Certification of Overarching Obligations

MUST be filed with the first Substantive Document in the civil proceeding filed by each party.

s. 41(2) of the Civil Procedure Act 2010 (Vic).

Section 3 defines ‘Substantive Document’ as:

(a) an originating motion;

(b) a writ that includes—

(i) a statement of claim; or

(ii) a statement sufficient to give, with reasonable particularity, notice of the nature of the claim, its cause and the relief or remedy sought;

(c) a complaint;

(d) a defence or a notice of defence;

(e) a reply;

(f) a counterclaim;

(g) an answer to a counterclaim or a response to an answer to a counterclaim;

(h) a claim by third party notice or a response to a claim by third party notice;

(i) a claim by fourth or subsequent party notice or a response to a claim by fourth or subsequent party notice;

(j) an application brought in accordance with section 93(4)(d) of the Transport Accident Act 1986 or a response to an application brought in accordance with that section;

(k) an affidavit which commences a civil proceeding or an affidavit which is the first response of a party in a civil proceeding;

(l) a summons which commences a civil proceeding or a summons which is the first response of a party in a civil proceeding;

(m) an application which commences a civil proceeding or an application which is the first response of a party in a civil proceeding;

(n) a notice of referral under section 80 of the Land Acquisition and Compensation Act 1986 or a response to a notice of referral under that Act;

(o) a claim for contribution against another party under Part IV of the Wrongs Act 1958 or a response to a claim for contribution against another party under that Part;

(p) an application for leave to appear and defend under the Instruments Act 1958;

(q) a claim for preliminary discovery;

But does NOT include

(r) a summons for taxation of costs;

(s) an application to a court for punishment of a person for contempt of court;

(t) an application for a rehearing under section 110 of the Magistrates’ Court Act 1989;

(u) an application under section 60(2) of the Accident Compensation Act 1985;

(v) an application under section 24 of the Second-Hand Dealers and Pawnbrokers Act 1989;

(w) an application under section 83 of the Occupational Health and Safety Act 2004;

(x) any process which commences an appeal or any process which is the first response of a party to an appeal;

(y) any process which commences proceedings under the Corporations Act or the ASIC Act or any process which is the first response of a party to proceedings under either of those Acts;

(z) any originating motion filed under Chapter III of the Rules of the Supreme Court.

Certification of Proper Basis

A party’s legal practitioner MUST make Proper Basis Certification whenever it files its first Substantive Document or when it files any subsequent Substantive Document which:

⚖️ Adds or substitutes a party;

⚖️ Makes, adds or substitutes a claim or cause of action;

⚖️ Makes, adds or substitutes a substantive defence or substantive matter by way of response or reply;

⚖️ Makes, adds or substitutes a material allegation, denial or non-admission of fact or law;

⚖️ Makes any significant amendment to a first substantive document or a subsequent substantive document (s42(1)).

Court rules may be made which provide for other circumstances in which Proper Basis Certification MUST be made, or the court may direct that certification be made in any proceeding (s42(1)).

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What are the Overarching Obligations in Victorian Courts and Who Do They Apply To?

Part 4.1 of the Civil Procedure Act 2010 requires 2 Certificates to be filed on commencing a civil proceeding:

1️⃣ An Overarching Obligations certificate (to be made by parties); and

2️⃣ A Proper Basis Certificate (to be made by lawyers).

What are the Overarching Obligations?

There is one Paramount Duty and a further 10 Overarching Obligations.

The Paramount Duty is a duty to the court to further the administration of justice in relation to any civil proceeding (s16).

One manifestation of this Paramount Duty is the duty of lawyers to accurately inform the court of the parameters of the case and the factual and legal issues for determination.

Inaccurate or misleading opening submissions, or submissions which do not have a proper factual or legal basis can impede the administration of justice by leading to a waste of court time and resources (Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri [2016] VSC 130 at [25]).

The Overarching Obligations are to:

1️⃣ Act honestly (s17)

2️⃣ Only make claims that have a proper basis (s18)

3️⃣ Only take steps to resolve or determine the dispute (s19)

4️⃣ Cooperate in the conduct of the civil proceeding (s20)

5️⃣ Not mislead or deceive (s21)

6️⃣ Use reasonable endeavours to resolve the dispute (s22)

7️⃣ Narrow the issues in dispute (s23)

8️⃣ Ensure costs are reasonable and proportionate (s24)

9️⃣ Minimise delay (s25)

🔟 Disclose the existence of documents critical to the dispute (s26).

Due to the Overarching Obligations, a party should not use generic or standard form grounds of appeal which are not adapted to the actual issues in dispute. This puts the court and the other party to the appeal to the trouble and expense of considering grounds of appeal that are not relevant (Toyota v Bendrups & Ors [2016] VSC 718 at [24]).

The Overarching Obligations do not expressly apply to proceedings commenced before the Act commenced on 1 January 2011.

But as the Supreme Court has observed, the ‘underlying principles embodied in the Act, and particularly the ‘overarching purpose’, nevertheless reflect the approach this Court has taken over many years to facilitate the utilisation of scarce court resources’ (Talacko v Talacko [2013] VSC 712 at [79]).

It has been suggested that obligations of the kind embodied in the Act have ‘always existed’ (Yara Australia Pty Ltd v Oswal [2012] VSCA 337 at [10], citing with approval Director of Consumer Affairs v Scully (No 2) [2011] VSC 239 at [21]-[22]).

For a detailed exposition of the common law principles regarding the duties that lawyers and expert witnesses owed before the commencement of the Civil Procedure Act 2010, see Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (Ruling No 8) [2014] VSC 567 [136]-[175]).

Who do the Overarching Obligations Apply To?

The Overarching Obligations apply to:

✅ Any person who is a party (s10(a));

✅ Any legal practitioner or other representative acting for or on behalf of a party (s10(b));

✅ Any law practice acting for or on behalf of a party (s10(c));

✅ Any person who provides assistance to a party and in doing so exercises control or influence over the proceeding, such as an insurer or litigation funder (s10(d));

✅ Expert witnesses (s10(3)).

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:

This FAQ is intended for general interest + information only.

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

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

How do the Overarching Obligations Apply to Lawyers in Victorian Courts?

Lawyers and the Overarching Obligations

The Overarching Obligations regime has a particular application to legal practitioners in Victorian Courts.

3 points should be noted:

1️⃣ The Overarching Obligations do not override any duty or obligation of a legal practitioner to a client to the extent that the overarching obligations can operate consistently (s13(1));

2️⃣ A legal practitioner or law practice MUST not cause a client to contravene the overarching obligations (s14);

3️⃣ Nothing in the Civil Procedure Act 2010 overrides any duty or obligation of a legal practitioner to the court whether arising under the common law, by statute, or otherwise (s15).

Further reading: FAQ ➲ How do the Overarching Obligations Apply to Lawyers in Victorian Courts?

One of the purposes of the Overarching Obligations is to ensure that a party’s rights are not lost due to the inattention or lack of diligence of the opposing party.

As such, a legal practitioner’s failure to meet the Overarching Obligations may justify the imposition of a costs order against that practitioner on a higher scale than the standard basis (Redline Towing & Salvage Pty Ltd v The Convenor of Medical Panels (No 2) [2012] VSC 483 at [6]).

In Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri [2016] VSC 130, McDonald J at [18] said:

Any practitioner representing a client in proceedings in the Supreme Court of Victoria where the legal costs are disproportionate to the quantum of the claim should expect their conduct to come under very close scrutiny.

The parties and their legal representatives will be held to account.

In Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri, McDonald J was ultimately not satisfied that the defendant’s counsel had breached the Overarching Obligations.

However, the same material relevant to the suspected breach provided the basis for McDonald J to refer the defendant’s counsel to the Legal Services Commission for suspected unsatisfactory profession conduct (at [78]).

A party is not automatically responsible for his or her lawyer breaching an Overarching Obligation. It is only if the party is somehow involved in the breach, such as by giving instructions which are contrary to the Overarching Obligations, that the party also becomes responsible for the breach.

This means that, where a lawyer commits a breach of the Overarching Obligations without instructions, a remedy under s.29 should only be directed at the lawyer (Giles v Jeffrey [2016] VSCA 314 at [110]-[113]).

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:

This FAQ is intended for general interest + information only.

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

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

Contravention of the Overarching Obligations: What Powers do Victorian Courts Have?

What Powers do the Victorian Courts have when Overarching Obligations are Contravened?

A Victorian Court may take into account a contravention of the Overarching Obligations in exercising any power in relation to a civil proceeding (Civil Procedure Act 2010 s28).

If the Court is satisfied on the balance of probabilities that there has been a breach the Court may make any order it considers appropriate in the interests of justice.

This includes:

1️⃣ An order that a person pay the costs and expenses arising out of a contravention;

2️⃣ An order that legal costs be payable immediately and enforceable immediately;

3️⃣ An order that a person pay compensation for financial loss that was materially contributed to by a contravention;

4️⃣ An order that a person take steps to remedy a contravention;

5️⃣ An order that a person not be permitted to take certain steps in the proceeding;

6️⃣ Any other order the court considers to be in the interests of a person prejudicially affected by the contravention (Civil Procedure Act 2010 s29(1)).

As the Court of Appeal observed in Yara Australia Pty Ltd v Oswal (2013) 41 VR 302, s29 is a unique provision, conferring powers broader than those in any other jurisdiction in Australia, to sanction legal practitioners and parties who fail to meet their overarching obligations (at [17]).

The effect of s29 is to transform the overarching obligations from aspirational to obligatory (Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 at [17]).

As Vickery J explained in Kenny v Gispreal Ltd [2015] VSC 284:

The facility provided by s 29 of the CPA alters the balance in favour of litigants who would otherwise incur a costs burden or suffer loss which was materially contributed to by a contravention of an overarching obligation, and does so in a significant way.

The CPA in this way gives very valuable, and commercially important advantages to litigants.

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:

This FAQ is intended for general interest + information only.

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

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

We have separated. What date is used to value our net asset pool?

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 separated. Wait or can we reach financial settlement now?

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 if you delay claiming legal rights?

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.

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.

Can a Licence to Occupy can 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.

Can I insure 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

In late 2016, Aon announced the first Australian “After the Event” (ATE) policy for claimants looking to protect themselves against a loss at trial through underwriter Ironshore Australia Pty Ltd.

ATE insurance protects claimants, whether a client or a law firm, by partially deferring payment of the premium, and payment is contingent on the success of the claim.

Eden Fletcher, National Financial Lines Placement Manager, Aon Risk Solutions Australia said this was a significant step for the Australian legal system.

“ATE insurance has been established in the UK for some time and Australian clients have been able to access the cover by going abroad. However, the overseas policies are not made with the Australian market and legislative system in mind. By being able to now access the product here, it will give clients comfort the product is fit for purpose, and is commissioned by local lawyers,” he said.
“Australia has become the most likely jurisdiction outside of the USA in which a corporation will face significant class action litigation. The risks and costs of fighting these cases are high, most are settled before they reach the courts. With a local solution now available, this provides solicitors with an opportunity to take on more cases as their client’s representative, given the client will have the protection of this insurance,” Mr Fletcher said.

The intention of this policy is not to encourage litigation, since premiums provide an incentive to settle early rather than progress deeper into trial, with the rate varying according to the stage at which the litigation is settled.

“We believe ATE insurance will be eagerly explored by law firms acting for the claimant, as it will make a higher percentage of potential class actions even more viable than present, subject to the merits of the case. When there is ATE insurance behind the case, it validates the case has a reasonable chance of success given Ironshore’s due diligence and underwriting methodology,” Mr Fletcher said.

To find out more about ATE litigation insurance:

➲ Contact Us.

Credits:

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

What is a Force Majeure clause?

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?

The book “Pleadings without Tears: A Guide to Legal Drafting Under the Civil Procedure Rules” by William Rose [revised & updated by Roger Eastman] we have in our law firm library in its 9th edition when it was published in 2017.

More editions of this highly valued & trusted guide will no doubt ensue.

The book was originally written back in 1990 specifically to address the problem of tears being shed over mistakes being made in Pleadings.

Trust me when I say that despite all the warnings, mistakes in Pleadings continue to this day.

There are good reasons why you don't want to be the party left crying over what could have been!

What are Pleadings?

Whether you are a self-represented litigant in a Tribunal or represent by a Solicitor or a Barrister in a Court or Tribunal the "Pleadings" will be the sum total of all of the documents containing the application or claim, the defence and counterclaim, the reply or answer, and any requests for and responses to further and better particulars.

In the case of an appeal, think of the pleadings as your stated grounds of appeal within your Notice of Appeal, etc. if you get these wrong then your appeal is likely to be dismissed or struck out before you have had the chance to actually submit the details of your appeal to the appeal court.

Why are Pleadings so important in Civil Litigation?

When you hear the member/judge say the words "the problem is in the Pleadings" or words to that effect you might need to have your tissues on hand.

A great analogy is baking a cake and discovering too late that you left out a key ingredient.

There is no guarantee you will be able to amend the Pleadings to fix the problem at the last minute.

You are generally prevented from making the same claim more than once.

Your missed claim may now be subject to the statute of limitations preventing it from being commenced as it is out of time.

An error in the Pleadings can be irreversibly fatal to the outcome of the civil litigation, or substantially impact on the result or the award of costs once the legal proceedings have completed.

A failure to state valid grounds grounds of appeal within a Notice of Appeal may cause your appeal to be dismissed or stuck out, with the potential for cost orders to be made against you for the other parties legal costs (if any) incurred in responding to your incompetent or deficient Notice of Appeal.

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

How to file an appeal against the NSW 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.

How does the dmca takedown notice procedure work?

Digital Millennium Copyright Act (DMCA) Takedown Notice Procedure

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

Increasingly, Australian websites are being hosted by overseas service providers which are often based in the USA.

The Digital Millennium Copyright Act (DMCA) is U.S. legislation which prescribes the DCMA Takedown Notice + DCMA Counter-Notice procedures.

Under the Digital Millennium Copyright Act (DMCA) there is no prescribed form for the DCMA Takedown Notice.

Minimum requirements for a DMCA Takedown Notice

1️⃣ State that you hold a "good faith belief" that the use of the copyright material in such a fashion is not authorized by the copyright holder, the copyright holder's agent, or the law;

2️⃣ State that the information contained in the DCMA Takedown Notice is accurate and that you are authorized to act on the behalf of the exclusive copyright holder for the material in question;

3️⃣ Make all your statements contained within the DCMA Takedown Notice under penalty of perjury (a.k.a a sworn declaration) in a United States Court of law; and

4️⃣ Include your physical or electronic signature.

What does "under Penalty of Perjury" mean?

A sworn declaration (also called a sworn statement or a statement under penalty of perjury) is a document that recites facts pertinent to a legal proceeding. It is very similar to an affidavit but is not witnessed and sealed by an official such as a notary public. Instead, the person making the declaration signs a separate endorsement paragraph at the end of the document, stating that the declaration is made under penalty of perjury. In the USA, the crime of perjury is a felony.

Example: Endorsement paragraph

I declare (or certify, verify, or state) under penalty of perjury that the above is true and correct. Executed on (date).

Be Specific + Accurate

You should make sure that you are specific and accurate when outlining the material you wish to have removed.

This is extremely important as you are making statements under penalty of perjury, but also due to the following practicalities:

✅ The volume of Digital Millennium Copyright Act (DMCA) Takedown Notices issued in the US is high; and

❌ Incomplete or inaccurate submissions are routinely rejected.

Australian "Designated Representative" ➲ USA "Copyright Agent"

Under the Digital Millennium Copyright Act (DMCA) the term "designated representative" we use in Australia is replaced by an equivalent term "Copyright Agent".

Therefore, you should look for the nominated Copyright Agent when you search for the person responsible for Digital Millennium Copyright Act (DMCA) Takedown Notices on any U.S. based website hosting service.

Australian Hosted Website

For websites hosted in Australia a different process is applicable.

See Takedown Notice for Online Copyright Infringement.

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

When a Civil or Criminal Offence imposes a Maximum Number of Penalty Units? How much is this? Who is it payable to? etc.

x Penalty Units = $y

When government legislation imposes a maximum penalty for a civil or criminal offence the maximum amount payable is generally specified in the form of a maximum number of Penalty Units.

The amount to apply per Penalty Unit to calculate the maximum Penalty payable varies amongst the Federal and State/Territory jurisdictions and is subject to change at any time, with some jurisdictions applying an automatic indexation mechanism.

Example

In NSW a reference to a maximum penalty of 5 penalty units means a maximum penalty of $550.

What are the current applicable rates?

As at the date of this FAQ the following amounts per Penalty Unit are detailed below:

ACT ➲ $160 per unit [individuals] / $810 per unit [corporations] (Since 8 Nov 2018);

Comm ➲ $222 per unit (Since 1 July 2020);

NSW ➲ $110 per unit (Since 1 September 1997);

NT ➲ $157 per unit (Since 1 July 2021);

Qld ➲ $137.85 per unit (Since 1 July 2021);

SA ➲ South Australia does not have a system of penalty units.

Instead, legislation either lists specific fine amounts or maximum "divisional penalties" which form a standard scale.

Vic ➲ $181.74 per unit (Since 1 July 2021);

Tas ➲ $173 per unit (Since 1 July 2021);

WA ➲ Varies (Penalty units are set for different categories of legislation. Traffic offences generally incur a penalty unit of A$50.

This Wikipedia link may be a useful as a quick resource to make an initial-check regarding whether any of the Penalty Unit rates may have changed.

Who is the Penalty Unit payable to?

Whilst is maybe assumed that the Penalty is payable directly to the person or party (if applicable) who has endured or been the victim of the offence this is not generally the case.

A Penalty is generally payable to the relevant government treasury.

In NSW this is the NSW Office of State Revenue.

Who can commence proceedings for the imposition of a civil or criminal penalty?

Generally speaking the proceedings for the imposition of a civil or criminal penalty are made by the relevant Minister or an authorised official rather than an applicant in a civil matter.

Example: Residential Tenancies Act 1987 (WA)

The Commissioner for Fair Trading is the only person who may prosecute a party for an offence committed under s.9 of the Residential Tenancies Act 1987 (WA).

Example: Civil Offences against the Residential Tenancies Act 2005 (NSW) and Penalties

RESIDENTIAL TENANCIES ACT 2010 - SECT 203

Penalty notices

203 Penalty notices

(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this section.Note : The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
(5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
(6) In this section,
"authorised officer" means a person authorised in writing by the Secretary as an authorised officer for the purposes of this section.

Can a Tribunal decide the penalty payable for the civil penalty?

Generally speaking the imposition of penalties for offences triggering civil penalty provisions (not specifically granted by the Tribunal's enabling legislation) are matters for a Court.

Example: Civil Offences against the Residential Tenancies Act 2005 (NSW)

202   Nature of proceedings for offences

(1)  Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court (emphasis added).

(3)  The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act is 50 penalty units or such other amount as may be prescribed by the regulations.

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

How to file an appeal to the NSW Court of Appeal?

NSW UCPR Procedure to file a valid timely Appeal to the NSW Court of Appeal:

1️⃣ If a Notice of Intention to Appeal (NSW UCPR Form 103) is to be filed with the Court of Appeal, it must be done so within 28 days after the material date: Uniform Civil Procedure Rules (NSW) 2005 NSW UCPR r 51.8; Supreme Court Act 1970 (NSW) s48(1)(a)(iv).

Note: The filing and service of a Notice of Intention to Appeal (NSW UCPR Form 103) is not an originating process and DOES NOT operate to commence proceedings in the Court of Appeal: NSW UCPR r 51.9 (3).

2️⃣ The material date in this case is the date of judgment or determination of the decision being appealed.

3️⃣ The effect of filing a Notice of Intention to Appeal (NSW UCPR Form 103) is to extend the clock from 28 days to 3 months from the material date within which a Notice of Appeal (NSW UCPR Form 105) is to be filed: NSW UCPR rr 51.6, 51.9(1)(a).

4️⃣ The reason for such an effect is that if a Notice of Intention to Appeal (NSW UCPR Form 103) is not filed, the Notice of Appeal (NSW UCPR Form 105) itself must be filed within 28 days of the material date: NSW UCPR r 51.16(1)(c).  

5️⃣ Failure to lodge a Notice of Intention to Appeal (NSW UCPR Form 103) within the 28-day limitation requires two main steps to be taken:

➲ The Notice of Appeal (NSW UCPR Form 105) to be submitted; and

➲ An extension of time to be sought within that notice.

6️⃣ For the request for an extension of time, details regarding the following matters must be proffered:

➲ Explanation for the delay;

➲ No prejudice was suffered by the respondent due to the delay;

➲ The application has a real prospect of success;

➲ That the relief sought is within the Court’s jurisdiction;

➲ A compartmentalised outline of the issues/grounds of appeal to be raised.

7️⃣ Failure to satisfy the criteria set out in paragraph 6️⃣  above, which involves explaining away the delay and filing an arguable case, will result in a refusal by the Court to grant an extension of time, and accordingly, an unsuccessful appeal: Fisher v Roads and Maritime Services [2018] NSWCA 295, [5]-[7], [9], [17]-[18].

8️⃣ At the same time or before the filing of the Notice of Appeal (NSW UCPR Form 105) a Summons Seeking Leave to Appeal (NSW UCPR Form 104), if leave to appeal is required (Legal advice is strongly recommended on this point) must be filed and served on each necessary party: NSW UCPR rr 51.9, 51.10.

Note: Where the subject matter of an appeal is not a monetary sum or the matter at issue amounts to the value of less than $100,000, parties must seek leave to appeal: s 101(2)(r) Supreme Court Act 1970 (NSW).

9️⃣ A copy of the Notice of Intention to Appeal (NSW UCPR Form 103) +/or Notice of Appeal (NSW UCPR Form 105) + Summons Seeking Leave to Appeal (NSW UCPR Form 104) (if applicable) must also be filed in the Court registry of the Court below or or a copy lodged with the officer of the Court below: NSW UCPR r 51.42.

🔟 If a Summons Seeking Leave to Appeal (NSW UCPR Form 104) needs to be filed, it can include the request for an extension of time (if applicable): NSW UCPR r 51.10(3).

Court Published Resources:

Practice Note No. SC CA 1

Common Procedural and Preliminary Issues arising in Court of Appeal Proceedings

Credits:

The above overview of the NSW UCPR Court of Appeal procedure was prepared by Shakvaan Wijetunga | Virtual Intern, Blue Ocean Law Group℠

Minor updates + Court Published Resources added by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What to do before sending a DMCA Takedown Notice?

DMCA Takedown Notice Checklist

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

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

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

2️⃣ Does a "Fair Use" exception apply?

"Fair Use" is a concept used in the US copyright law.

It is a much more flexible, open-ended concept and does not apply in Australia.

In Australia, we use a more limited concept called "Fair Dealing".

See this FAQ: Australian Hosted Website v. USA Hosted Website: Does where the website is hosted make a difference? to learn more about the differences between the two concepts.

The following has been extracted from the Stanford Article, Measuring Fair Use: The Four Factors

The following 4 (arguably 5) factors are relevant in deciding whether the dealing is fair using a Balancing Test:

➲ The Transformative Factor: Purpose and Character of the Use,

➲ The Nature of the Copyrighted Work;

➲ Effect of the Dealing on the Potential Market/value of the work;

➲ Amount and substance copied relative to the whole; and the

➲ The "Fifth" Fair Use Factor: Are you good or bad?

3️⃣ Always ensure you obtain legal advice from a practising USA Attorney regarding whether a “Fair Use” exception will apply in your situation?

4️⃣ Double-Check the details

You will need to double-check that you have provided sufficient information to enable the Internet Service Provider's (ISP) Copyright Agent to take the required action to quickly identify + remove your copyright material:

For example

✅ The specific infringing URL(s); and

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

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

5️⃣ Send the DMCA Takedown Notice To the Internet Service Provider's (ISP) Copyright Agent

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

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

Australian Hosted Website

For websites hosted in Australia a different process is applicable.

See Takedown Notice for Online Copyright Infringement.

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What is a DMCA Counter-Notice?

What is a Digital Millennium Copyright Act (DMCA) Counter-Notice?

The owner of the USA hosted website who you have alleged is infringing copyright by serving the Internet Service Provider (ISP) with a DMCA Takedown Notice may issue a DMCA Counter-Notice claiming there has been a mistake and they dispute that the material infringes your copyright.

The Internet Service Providers (ISP) must then restore, or enable access to, the copyright material on its system or network; unless you provide notice, within 10-14 business days of receiving the DMCA Counter-Notice, that you or your agent have commenced legal proceedings seeking a Court order to restrain the activity that is claimed to be infringing.

The form of the DMCA Counter-Notice is suggested by the DMCA statute, which can be found at the U.S. Copyright Office's official website: https://www.copyright.gov.

This means that you will need to issue legal proceedings if you want the material to be permanently removed.

It will then be up to the Court to determine whether the publishing of the material on the website is an infringement of copyright or whether there is a valid defence to the claim of infringement of copyright.

Important: If the website can prove that your DMCA Takedown Notice was unfounded then you may be liable for damages or other civil penalties.

Please also be aware that it is a Federal Crime to swear a false statement of good faith in a DMCA Takedown Notice (please refer to the minimum requirements above regarding making your statements under penalty of perjury).

Therefore, we strongly recommend you always have a USA Attorney review your DRAFT before you decide whether to proceed.

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

We have separated. We have no Binding Financial Agreement.

Can we agree verbally or in writing between ourselves?

We trust each other and don't want to go through the additional paperwork/expense.

Can we sort it out and agree verbally or in writing just between the two of us?

In short, the answer is Yes.

However, doing so runs the real risk of a potential costly + lengthy legal dispute at some point in the future.

This is because whatever is agreed verbally or in writing between a couple (without first obtaining independent legal advice) is not binding or enforceable in Court.

Which is better: A Binding Financial Agreement or Court Orders?

The Binding Financial Agreement (BFA) has to be in writing and each party needs to have sought independent legal advice before signing for it to have any legal effect.

These agreements, which are commonly known as/referred to as a prenuptial agreement, can be challenged on many grounds such as being outdated due to change in the parties’ circumstances.

The Court Orders made are final and binding (other than via the usual Court Appeal process) which makes this the best option for the separated couple to make a "clean break" with as much certainty as possible.

How does the Court decide how to divide assets and debts to achieve a Just & Equitable outcome?

There is no set formula used by the Court to divide your property.

No one can tell you exactly what orders a judicial officer will make.

The decision is made after all the evidence is heard and the judicial officer decides what is just and equitable based on the unique facts of your case.

The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage
(see Sections 79(4)and 75(2)) or a de facto relationship (see Sections 90SM(4) and 90SF(3)).

The general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship, and are based on:

  • working out what you've got and what you owe, that is your assets and debts and what they are worth;

  • looking at the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings;

  • looking at indirect financial contributions by each party such as gifts and inheritances from families;

  • looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and

  • future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn.

The way your assets and debts will be shared between you will depend on the individual circumstances of your family.

Your settlement will probably be different from others you may have heard about.

Just & Equitable v. Bad Bargain

Q: If the Binding Financial Agreement (BFA) represents a "Bad Bargain" can it be set aside?

A: No

Court Orders are made in the discretion of the Court such that they are "Just & Equitable".

Credits:

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

Important Notice:

This FAQ is intended for general interest + information only.

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

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

What is needed for full & 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 ➲ 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 ➲ Probate / 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 if a party breaches duty of full & frank disclosure?

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 Family Court do I/we make an application to?

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 in the Cth Courts Portal / Commonwealth Courts Portal?

The Cth Courts Portal / Commonweath Courts Portal

The Cth Courts Portal / Commonwealth Courts Portal is an initiative of the Federal Court of Australia and Federal Circuit & Family Court of Australia.

It provides online services for registered litigants (you) +/or your lawyer enabling you/your lawyer to eFile/eLodge + access case documents & information incl. Court Dates.

How do I?

How do I eFile in the Cth Courts Portal / Commonwealth Courts Portal?

How do I navigate through the Cth Courts Portal / Commonwealth Courts Portal?

How do I register for the Cth Courts Portal / Commonwealth Courts Portal?

Federal Law Search

The Cth Courts Portal / Commonwealth Courts Portal also includes Federal Law Search which provides selected information on cases filed in the:

  • Federal Court of Australia; and
  • General Federal Law jurisdiction of the Federal Circuit Court of Australia.

The information is real time and includes all cases that have commenced since 1 January 1984.

As the database is continually updated, the results of a search may vary from time to time as new information is entered.

Matters where a pseudonym has been assigned to a party are not searchable in Federal Law Search.

Source: Cth Courts Portal / Commonwealth Courts Portal.

Important Notice:

This FAQ is intended for general interest + information only.

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

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

Why culturally appropriate Wills are important?

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.

Your speciality? The Generalist v. Specialist Debate

What is your Area of Speciality?

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 they know nothing about everything …

Specialist ➲ a person who knows more and more about less and less until finally they know 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 rights do I have if my neighbour/s are 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.

How is Foreign Investment in Australia regulated?

Foreign Investment in Australia ➲ An Introduction

The Australian Government welcomes foreign investment that protects national and community interests and contributes to economic growth, innovation, and prosperity.

Certain types of foreign investment proposals are subject to governmental notification or reviewal by the Foreign Investment Review Board (FIRB), who follows guidelines and regulations set out in the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) and the Foreign Investment Policy, to determine whether the proposals are contrary to national interest.

The majority of foreign investment proposals are usually approved, with only 10 out of 108,990 applications being rejected from 2015 to 2018.

Once they are approved, foreign persons are obliged to follow Australia’s laws and regulations.

Who is a "foreign person"?

According to Foreign Acquisitions and Takeovers Act 1975 (Cth) (the FATA), a foreign person includes:

  • Any individual who does not ordinarily reside in Australia; or
  • A corporation or trustee of a trust in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, holds a substantial interest (at least 20%); or two or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate interest of at least 40%; or
  • A foreign government.

FIRB Approval Regime

Under ordinary (non COVID-19) circumstances, the Australian Government’s foreign investment policy relies on a broad screening regime that evaluates foreign acquisitions exceeding certain monetary thresholds* for both land and non-land investments.

Download PDF of Monetary Thresholds applicable from 1 January 2022

Monetary thresholds are indexed annually on 1 January, except for the $15million (cumulative) agricultural  land threshold for private investors and the $50 million agricultural land threshold for Thailand investors, which are not indexed.

'Notifiable Actions' and 'Significant Actions'

Acquisitions by a “foreign person” can be categorized as:

⚖️ “Significant Actions” or

⚖️ “Notifiable Actions”.

Notifiable Actions always require FIRB approval prior to the transaction.

These include:

  • Acquisition of a direct interest in an Australian entity or business that is an agribusiness;
  • Acquisition of a substantial interest (at least 20%) in an Australian entity; or
  • Acquisition of an interest in Australian land. There does not need to be a change of control.

Significant Actions do not require FIRB approval.

These include an acquisition of interests in securities, assets or Australian land, or otherwise an action in relation to entities and business (e.g. entering into agreements) that:

  • Meets the relevant monetary thresholds (adjusted yearly and published on the FIRB website) - during COVID these are all temporarily set to $0;
  • Has a connection to Australia; and
  • Other than in relation to the acquisition of interest in Australian land, results in a change of control involving a foreign person.

Further Resources:

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)

FIRB Guidance Note 35 Significant and Notifiable Actions (Last updated 1 July 2017)

Once you have completed our online Primer + Quizzes, we recommend you contact us with your detailed queries.

Notes:

* Foreign Policy is subject to change at anytime. This link was last accessed on 24 June 2022 (Thresholds noted on the link were applicable from 1 January 2022).

^ Our Foreign Investment +/or Doing Business in Australia Primer + Quiz has not yet been updated to incorporate [post-COVID] FIRB changes.

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.

Are there any time limits 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.

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.

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.

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.

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.

When do I need to formally revoke 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 is BLUEOCEAN.law's ➲ Simple Marketing Promise?

Our simple marketing promise

“We offer memberships to individuals + businesses (who find our subscription pricing of less than the cost of a cup of coffee circa $3.50 per day a compelling proposition) inviting them to join us on a lifetime journey where we guide + empower them using innovative + proactive solutions to safely navigate 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 some of the best lawyers in their respective fields of practice.”

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

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

Credits:

Our Simple Marketing Promise was developed by our founder ➲ James D. Ford GAICD CIPP/US CC | 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.

What to consider before commencing 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.

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℠.

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.

Source: Trust Company Oklahama

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.

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.

What is Embedded Lawyer-Logic + how does it work?

What is Embedded Lawyer-Logic™?

Think of Embedded Lawyer-Logic as your way of gaining 24/7/365 access to the best legal minds in the relevant area of law to guide you through complex legal matters via one of our Legal Wizards +/or to instantly generate high quality legal documents, or an initial draft for review by our legal team.

More than [1,100+] Australian lawyers use the same Industry leading Legal Document Platform to automatically generate high quality legal documents.

Step 1️⃣: Information Gathering/Legal Wizard

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.

If you are using one of our Legal Wizards there may or may not be a document to be automatically generated.

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.

Our legal team will contact you and assist you throughout the entire process.

If you are a subscribed member the cost for the time spent by our legal team to assist you is heavily discounted.

Credits:

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

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℠.

How do I provide for 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 + pet 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 a back-up plan 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 “Care Planning for your Furry, Fluffy or Fine-Feathered Pets"  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 validly execute my Australian Will?

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.

Next Steps

As soon as practical scan your validly executed Will and email us the scanned copy.

At your discretion, you may bind or otherwise staple the Will and store it in a safe place ensuring you tell your Executors where you have stored it.

Due to the importance of your Will, we strongly recommend you hold off and contact us so we can coordinate the professional binding + physical storage of your Will in Safe Custody.

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 are Enduring Documents in Queensland witnessed?

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.

What constitutes "Hardship Notice"?

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.

Root Cause Analysis: Why Debt Collection?

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.

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.

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 4 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℠.

Who are the 3 tiers of Non-Clients?

“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.

How can I make airline compensation claims globally?

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℠.

What is the situation for 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.

COVID-19 restrictions mean I can't execute my Australian Will …

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.

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.

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