BUILDING & CONSTRUCTION
Building and construction law is concerned with the general principles relating to the construction of structures on land with particular reference to the standard forms of contract in common use in Australia.
We can provide you advice on the legal principles relating to:
The formation of building contracts;
Interpretation of building contracts;
Performance of building contracts, and
Termination of building contracts;
The rights and remedies for breach, and
Consequential dispute resolution
For building and construction matters, it is important that you understand the rights and obligations of the principal parties involved in a building project, in contract, in tort and under statute, both during the work and following the determination of the building contract or the insolvency of a party. Our professionals would be glad to provide you with the advice that you need for your building and construction project.
COMMUNICATIONS, TECHNOLOGY & MEDIA
COMPUTER & INTERNET
CONTRACT & COMMERCIAL
There are generally two types of formal requirements enabling parties to commence a commercial relationship. These are deeds and agreements (contracts). It is imperative that you understand the difference relating to their interpretation and construction.
An agreement (or contract) is any document in writing which creates or affects legal or equitable rights and/or liabilities and is authenticated by the signature of the maker of the document. An agreement (or contract), is distinct from a deed in that an agreement (or contract) is not sealed.
A deed is the most solemn act that a person may perform with respect to a particular property or contract and the form of a deed is that which is laid down by the law from time to time. A deed is an instrument which either of itself passes an interest, right or property, creates an obligation binding on some person, or amounts to an affirmation or confirmation of something which passes an interest, right or property. Any instrument purporting to be a deed but which does not convey any such interest is considered to be imperfect. In order to be a deed at common law, an instrument needs to comply with a number of formalities:
It must be written on parchment, vellum or paper;
It must be sealed; and
It must be delivered.
The main difference between a deed and an agreement (or contract) is that a deed does not involve consideration, or money passing hands. Deeds and agreements have different purposes and you should obtain legal advice regarding the preparation, construction, interpretation and enforcement of your commercial negotiations. A handshake is often not enough
CONVEYANCING & REAL PROPERTY
Conveyancing is the transfer of title of property from one person to another. It may appear to be a simple process, however there are many things to consider.
- Selling your property:
When selling your property, usually the agent will prepare the contract. However, it is important if any extra terms or special conditions are inserted that you seek legal advice as to their effect prior to executing the contract. Once the contract is executed, please have your agent fax it to our firm.
After we receive the contract we will ask you to provide us with the following instructions and information about the property to be sold:
The address of the property;
The nature of the property - whether a house, unit or whatever;
The nature of the title of the property;
The reference to the title of the property;
Whether or not the property is mortgaged and, if so, the identity, address and contact number of the mortgagee;
The whereabouts of the certificate of title of the property.
Whether there is a survey of the property and if any alterations or additions have been either included before or after the survey;
Whether or not there is a building certificate.
Whether the property is sold with vacant possession or subject to any tenancies;
Do any disputes exist in relation to the property or any part of the property;
Has any government or statutory authority issued any order requiring that something be done on or to the property or that something be not done on or to the property.
We will also liaise with your:
Agent regarding the deposit, satisfaction of the conditions and settlement;
Bank regarding the release of mortgage (if applicable); and
The purchaser's solicitors regarding satisfaction of conditions such as building and pest inspection and finance.
It is our firm's policy to keep you advised every step of the way throughout the transaction to make the purchase of your property as stress free as possible.
- Buying a Property:
Usually the agent will prepare the contract. However, before you sign the contract you should consider obtaining legal advice. This is because there may be a term in the contract that varies from the standard terms and conditions that is either incorporated in the contract for the seller's benefit, or that you require in the contract.
As soon as you sign the contract you should supply it to our firm. At this point we will perform some searches on your behalf and ensure that there is no misunderstanding as to the following:
The address of the property;
The price of the property;
The stamp duty on the property;
The nature of the property - whether a house, unit or otherwise;
The nature of the title to the property;
Insurance of the property;
Whether the property is to be purchased with vacant possession or subject to tenancies;
If the property is to be sold subject to tenancies, the terms of the leases;
What fixtures the purchaser believes they will receive with the property;
What fittings (not being fixtures) the purchaser believes they will receive with the property;
The date contemplated for completion;
The consequences of default;
The basis for adjusting rates and taxes;
The zoning applicable to the property and whether the zoning is consistent with the use to which the purchaser intends to put the property;
The whereabouts of sewer lines;
The contents of any survey or building certificate attached to the contract;
The effect of any covenants or easements relevant to the property; and
The implied statutory terms.
We can also provide you advice on:
Finance and the terms and conditions of your mortgage;
The position as to encroachments;
Whether there is need for a building certificate;
If there is a tenant in possession of the property and exactly what rights they hold under their lease;
Any conditions of copyright that apply to architectural designs for the property;
Whether there is any need to investigate the conditions on the approval of the subdivision which contains the land to be purchased, of any building on that land, or to any use which that land is or is proposed to be put;
Whether there is a swimming pool.
The position as to the payment of the deposit to the deposit holder. If less than the whole of the deposit has been paid, the purchaser should be asked for a cheque for the balance of the deposit;
Whether the land is subject to any type of contamination and the party who is responsible under the contract for its remediation;
Any contract amendments;
The possibility of lodging a settlement notice or a caveat;
In addition to the above, we will also organise the preparation of the transfer documents, the stamping of the contract, and attendance at settlement. It is our firm's policy to keep you advised every step of the way throughout the transaction and to make the purchase of your property as stress free as possible.
CORPORATION & BUSINESS
ENERGY & RESOURCES
ENVIRONMENTAL & PLANNING
FARMING & AGRICULTURE
If you are considering purchasing or you own a franchise then it is important to familiarise yourself with the Franchising Code of Conduct (the code). The code is contained in a Schedule to the Trade Practices (Industry Code - Franchising) Regulations 1998.
The key features of the code are:
A broad definition of the franchise agreement that encompasses not just business format franchises, but virtually all types of franchise agreements and many licensing, agency and branded product distribution arrangements.
A requirement for a franchisor to provide a disclosure document to either a prospective franchisee proposing to enter into a franchise agreement or an existing franchisee proposing to renew or extend a franchise agreement. The franchisor must ordinarily provide a disclosure document.
A 14 day period, after provision of disclosure and before signing, or before the franchisee makes any non-refundable payment, to facilitate a franchisee obtaining advice.
A seven day cooling off period after the earlier of signing a franchise agreement or making any payment under the agreement.
Disclosure and audit requirements for marketing funds.
Rules for assignment and termination of franchise agreements.
A process to encourage alternative dispute resolution.
The code's definition of franchising is comprehensive and has some features which have drawn criticism from certain sources.
It should be noted (paraphrasing and summarising) that:
A franchise agreement can be written, oral or implied in whole or in part.
The franchisor must grant the franchisee the right to carry on the business of distributing goods or services in Australia.
There must be a system or marketing plan substantially controlled by the franchisor.
The business must be materially associated with a trade mark, advertising or symbol owned, used, licensed or specified by the franchisor or an associate of the franchisor.
The franchisee must pay the franchisor a fee, such as an initial fee, a royalty or a training or service fee, but excluding payments at or below wholesale price for goods taken on consignment.
If this all the above seems a little confusing to deal with on your own, call us today and we will gladly assist you with any concern.
Intellectual property is an intangible form of property. Intellectual Property law is recognition that the intellectual or mental processes can produce something that is both valuable and useful. There are different types of Intellectual Property, for example Copyright, Designs, Patents, Trade Marks, and Confidential Information.
See Well Law has experts on intellectual property working together to protect your ideas and information. We have a qualified Trade Marks Attorney available here on the Sunshine Coast. See Well Law can deliver comprehensive copyright, design, and trade mark services. In particular, we can assist you with:
Registration of trademarks & service marks;
Designs Registration & Protection;
Copyright protection & drafting of licensing & franchising agreements;
Domain Name registration & dispute resolution;
Searches and ancillary services;
IT, Internet & E-Commerce Law;
Portfolio management services;
Sale / purchases;
All other Intellectual Property Protection
We also offer great advice on the successful creation, acquisition and commercialisation and enforcement of your intellectual property. We do this by utilising an integrated and highly specialised service to manage, protect and defend your intellectual property. This seamless, integrated service is not readily available from other Sunshine Coast Firms.
Sale of goods law has underpinned a variety of specialised sale transactions. Some of these are particularly common in international sales of goods transactions. However, it is important to note that every country has its own government and rules to which it must abide by. For example in Australia our working week is Monday to Friday, however in some Arabian countries the working week is Saturday to Wednesday. Further, when trading across national boarders, the parties to the contract may not even speak the same language.
An international contract for the trade of goods and or services is more complex than a contract prepared for Australian trade. As, the country laws of a party, there is also a myriad of international agreements and conventions that may apply to the transaction. Often international agreements in relation to trade could cause several competing and possibly contradictory laws that govern the parties to the contract to come into direct conflict. This direct conflict, if not understood at the outset of the contract or agreement could lead to a dispute if the roles and responsibilities are not negotiated at the outset of the contract.
See well law can assist you with the division of responsibility between the seller and buyer concerning their mutual rights and duties and, in particular, certain aspects related to the performance of the sale contract. FOB ("Free on Board") and CIF ("Cost, Insurance and Freight") contracts for the sale of goods are two of the most common forms of international contracts for the sale of goods.
FOB and CIF contracts form part of incoterms which are standardised rules for the interpretation of trade terms designed in cross-border sales and purchases of goods. Generally they have no independent, obligatory force, so they must be specifically incorporated into an international contract of sale of goods or be implied from the terms of the contract between the seller and the buyer.
We can provide you advice on:
It is important that your international agreement protects you and contains the information that you agreed between the parties.
LEASES & LICENSES
A lease confers a proprietary right to land. Other rights to possession of land of lesser stature, based in contract, are usually classified as licences. A licence is the grant of permission to do something on land which, without permission, would constitute a trespass. It is sometimes difficult to distinguish between a lease and a licence and the traditional test is "Has the occupier exclusive possession?"
It is important to obtain legal advice on your lease, as there are many types of leases with many variables. At See Well Law, we will ensure that you receive the right advice regarding the important issues for your lease, for example:
Rent review clauses;
The Retail Shop Leases Act;
Demolition or Relocation;
Resumption of Land
We have experience with both preparing leases and reviewing leases. Please contact us today.
LIQUOR LICENSING, GAMING & LOTTERIES
In Queensland, liquor is primarily defined as a spiritous or fermented fluid of an intoxicating nature intended for human consumption, but specifically includes any other substance intended for human consumption in which the level of ethyl alcohol is more than 0.5 per cent at 20 degrees Celsius. It is illegal to sell alcohol to minors or without a licence. Each jurisdiction has different types of licences that can be applied for. In Queensland these include: In Queensland, there are nine available licences:
Special facility licence;
Wine producer licence, and
Wine merchant licence
See well law can provide you with assistance for the eligibility and suitability of your liquor licence, the form and manner of your application, overcoming objections and assisting with reviews of a liquor licence, obligations of licensees and permittees, variation, transfer, suspension and termination.
Gaming rules and regulations are strict and should not be participated in without legal advice. For example, Legislation in most jurisdictions:
Makes void certain gaming and wagering contracts;
Specifies certain games as unlawful games (although with the exception in most jurisdictions of the game of two-up when played in accordance with strict statutory conditions); and
Makes it an offence to engage in unlawful gaming.
In some jurisdictions, legislation contains prohibitions on the possession of instruments of gaming or like devices and places for unlawful gaming. Gaming houses are also prohibited by legislation in most jurisdictions. In all jurisdictions there are also extensive legislative frameworks with respect to the regulation of all aspects of:
The operation of gaming machines and gaming machine gaming; and
The operation of casinos and casino gaming.
In the Australian Capital Territory, Queensland and Victoria, legislation regulates what is termed interactive gaming and in the Northern Territory legislation regulates internet gaming, which is subject to Commonwealth legislation dealing with interactive gambling.
Specified bodies and persons are prescribed by legislation in all jurisdictions to exercise a supervisory and monitoring role in relation to casinos and gaming machines.
Legislation in all jurisdictions permits the conduct of prescribed types of lotteries by persons who fulfil the relevant licensing or authorisation requirements. At common law, a lottery is a gift or distribution of a prize or prizes amongst competitors which:
Depends, so far as the competitors are concerned, solely upon chance and involves no exertion of skill, dexterity or energy, nor the manifestation of any special quality on their part; and
Is not wholly gratuitous.
The litigation generated by this definition regarding the extent to which the presence of any element of skill would serve to negate the existence of a lottery prompted the legislatures in all jurisdictions (except the Australian Capital Territory) to brand a scheme a 'lottery' if it exhibits an element of chance. You should obtain legal advice to ascertain if the activity you propose to do is lawful.
Superannuation is our retirement nest egg. It is important that you understand the law in relation to the regulation and supervision of superannuation entities under the superannuation industry supervision legislation. See Well Law can assist advice on:
The appointment of trustees;
Equal representation rules;
The monitoring and investigation of superannuation entities;
Civil and criminal liability for offences;
The regulation and supervision of retirement savings accounts and small superannuation accounts;
Superannuation guarantee charge;
The resolution of complaints;
Unclaimed money and;
A driving charge is a very serious matter that can have an immediate and a long term impact your employment, your financial situation, and even your plans for future travel overseas.
At See Well Law, our professionals understand the seriousness of your situation and we are here to help you with all aspects of Traffic Law including:
Drink Driving Offences,
Careless Driving Offencesm
Disqualified Driving Offences,
Dangerous Driving Offences,
Vehicle Forfeiture Applications,
Applications to the court for a Work Licence,
Applications to the court for a Special Hardship Licence.
Our professionals will:
Advise you of all of your options and the best course of action available to you.
Advise you about any defences that may be available to you.
Negotiate on your behalf with the Police Prosecutors to have the charges amended.
Draft Applications and prepare Affidavits on your behalf for Work Licences and Special Hardship Licences.
Advise you as to what is likely to happen in court.
Appear on your behalf in court.
Make submissions to the court about your personal circumstances with a view to minimising your penalty.
Advise you of the possible range of penalties a court may impose.
If you have been charged with a driving offence, don't take any risks, contact us now for our advice.
A trust is treated as a 'relationship'. The relationship describes a situation where a person either alone or jointly holds or has rights over property, for or on behalf of a person/s for the accomplishment of some particular purpose/s. The person that holds the property is called the trustee. Each person for whom property or rights are held in trust is called a beneficiary or cestui que trust. Inherent in the trust is that the trustee owes fiduciary duties to the beneficiaries.
You should seek legal advice on the establishment, management and winding up of your trust. For example, it is an attribute of a trust that a fiduciary relationship exists between the trustee and the beneficiaries, so that the trustee must exercise his or her rights, duties and powers in a fiduciary capacity. Upon assuming trusteeship, a trustee must acquaint himself or herself with the terms of the trust, all documents concerning the trust, and the nature and state of the trust property. Moreover, a replacement or new trustee must seek information of the trust. Our expert team can assist with all areas of trust law.
WILLS, ESTATE & PLANNING
Succession planning and Succession in Australia, includes:
Testate and intestate succession (ie Wills);
Enduring powers of attorney;
Advance health directives;
Grants of probate and letters of administration;
The administration of a deceased estate and
Family provision application
A will is an instrument stating the intention of its creator (ie you). When you make a will you become the testator in relation to matters, such as the disposition of the your property, to take effect after your death. A will is valid if the testator possessed the requisite testamentary capacity and intention and if it meets certain formal requirements.
A will usually appoints a person or persons to act as executor to carry out the testator's wishes as set out in the will. A will is ambulatory during the testator's lifetime and revocable at any time. It takes effect upon the death of the testator.
If you die without a will you are said to die intestate. A person is said to die intestate where no effective will has been left to dispose of the person's property on death. In this case there are statutory rules which provide for the distribution of the person's property in the absence of an effective will. These rules, referred to generally as schemes of distribution on intestacy, or rules of descent or inheritance of property, determine who is to receive an intestate's property and how much each is to receive. Unfortunately, these rules may not be in accord with how you wish your property to be dealt with and it may become very costly and painful for the members of your family to administer an intestate estate.
Please contact See Well Law today to discuss how you would like your property interests dealt with in the event of your death.
Enduring Power of Attorney:
A general power of attorney is given to someone to make financial decisions on your behalf when you are absent, for example, if you are overseas and need someone else to sell your house or pay your bills.
An enduring power of attorney is put in place in the event something happens to you (usually illness or accident) that makes you unable to make your own decisions.
Both types involve a formal agreement giving someone else the power to make decisions on your behalf. It works like this:
You sign a form giving power of attorney to the person of your choice.
You specify the types of decisions that the person you choose can make.
The person agrees to the appointment by signing the acceptance section of the form. This makes them your attorney.
As your attorney, they can then act on your behalf if necessary.
The decisions that your attorney makes for you have the same legal force as if you had made them yourself. We recommend that all people have an Enduring Power of Attorney regardless of age.
Advanced Health Directives:
An Advanced Health Directive is a document whereby you can state your wishes or directions about how you would like your body to be dealt with when you are still alive but not competent to act. It comes into effect only if you lack the requisite mental capacity to decide such things without it for example if you are in a coma. This document will have to be taken to your doctor who will explain the document to you and also provide you advice regarding available medical treatment. Finally, this document will need to be witnessed by a justice of the peace, commissioner of declarations or a lawyer after it has been completed by your doctor. This document is recommended for people suffering a terminal illness.
Grant of Probate and Letters of Administration:
A grant of probate enables the executor of a testate estate to make title to the testator's property and then to administer, collect and protect it for the benefit of the persons entitled under the will or those interested in the estate whether as creditors, beneficiaries or next of kin. A grant of probate is conclusive evidence of the validity of the will. However, a grant of probate does not determine the validity of the dispositions contained in the will. If you require a grant of probate for a family member or loved one, please contact us for expert advice.
A general grant of letters of administration is the appropriate order to seek where the deceased has died wholly intestate and it is necessary or desirable to have a legal personal representative formally appointed to enable the estate to be administered. A grant is a court order appointing an administrator to administer the estate of the deceased according to law for the benefit of beneficiaries identified, and for shares or interests of identified beneficiaries specified, in the relevant statute of each jurisdiction. A grant of letters of administration can be costly as an application is made to the Supreme Court by the intending administrator for the grant of letters of administration.
The application is made by the originating process prescribed by the rules of court, supported by affidavit evidence sufficient to prove the facts appropriate to establish the applicant's entitlement to the grant sought and to comply with the rules of court. The legal personal representative so appointed is referred to as an 'administrator' of the estate. If your family member or loved one passed away without a Will and your require a grant of letters of administration, call us today.
Devolution of property upon a person's death is governed in most circumstances by legislation, however, in some cases the principles of the common law apply. In Queensland, all property of a deceased person located within the State vests forthwith upon death in the deceased's named executor or, if there is no executor or none able and willing to act, in the Public Trustee until an administrator of the estate is appointed by the court.
The executor named in the deceased's last will has primary responsibility for burial of the deceased's body, possession of the body for that purpose and the right to decide where burial is to be effected or how the remains should be disposed of.
If you require assistance with the estate administration, for your loved one, call us today.
Family Provision Applications:
Family provision legislation enables the court to vary a will or the distribution of an estate in favour of certain defined eligible persons or applicants on specified grounds. The family provision legislation applies to intestate as well as testate estates and vests in the court a power to make provision out of the estate of a deceased person, and in some jurisdictions out of certain other property, where the deceased did not make proper provision for such applicants. The adequacy of provision is assessed having regard to criteria such as the provision necessary for proper maintenance, support, education and advancement in the life of the applicant. If you have been excluded from a Will call us today to discuss your entitlements.