Author: Daniel Stephenson

We are sure that most of you have now heard that the Prime Minister announced a new Code for commercial landlords and tenants which must be followed if the tenant and their business is adversely affected by COVID-19.

At Gibson Howlin Lawyers, we have looked at what has been announced and provided the following summary of what this new code means for commercial landlords and tenants.

As the Code was released by the Federal Government, it does not become law until it has been legislated and regulated in each individual State and Territory.

The key to a tenant being able to utilise the new Code and any resulting state-based legislation or regulation is that they must:

• be eligible to receive support under the Commonwealth’s JobKeeper programme; and
• have a turnover of less than $50 million; and
• have a 30% or greater decrease in turnover.

The Code sets out a number of principles which are intended to assist Tenants and Landlords to reach an agreement. These principles are:

• a prohibition on Landlords terminating leases for non-payment of Rent;
• an obligation on Tenants to continue to comply with their obligations under their respective Lease(s);
• an obligation on Landlords to offer rent reductions in the form of deferrals (postponement of Rent) or waivers that are proportional to the Tenant’s decrease in turnover. Rent waivers must comprise at least half of the total rent reduction;
• a prohibition on Landlords charging fees or interest on rent or other payments being deferred;
• a prohibition on Landlords calling on security deposits, bank guarantees and personal guarantees;
• a requirement for Landlords to provide their Tenants with an opportunity to extend their Leases for an equivalent period of the rent waiver and/or deferral;
• an automatic freeze on rent increases for the period of the COVID-19 pandemic and for a subsequent recovery period; and
• an obligation on Landlords to pass on any reduction in statutory rates or charges it receives to its Tenants.
• If Landlords and Tenants cannot agree on how to amend or vary the lease in the face of the COVID-19 pandemic, the Code allows either party to refer the matter to their respective State or Territories’ mediation service.

For those leases that do not meet the criteria set out earlier, Landlords and Tenants will be free to make their own commercial arrangements in relation to amending or varying the lease (if an agreement can be reached at all).

At Gibson Howlin Lawyers we are continuing to keep track of the NSW Government’s ratifying of the Code and are ready to assist you to negotiate an agreement with your Landlord or Tenant (as the case maybe) in accordance with the Code or to document any rent relief agreement reached.

We currently have a number of Landlords and Tenants at the moment who are already utilising our services to assist in such matters, so please do not hesitate to contact us on 9523 6111 if you require such assistance.

The NSW State Government has also announced relief with respect to payroll tax. If your grouped businesses have wages of $10m or less and you pay monthly, then no payment is required for the months  of March, April and May 2020.

When annual reconciliations are lodged, there will be a tax liability reduction of 25%. Wage figures for all months must still be reported in the annual reconciliation.

The idea behind this being that non-payment of three months of payroll tax will roughly equate to the 35% reduction in the annual liability.

Further details that have been released by Revenue NSW can be found here.

For more detailed advice, our experienced solicitors are available to discuss your specific circumstances. Do not hesitate to contact us on 9523 6111.  

As part of the Federal Government’s recently announced $130bn stimulus package, the JobKeeper payment has been hailed as a relief for employers and employees alike. The Federal Government will effectively pay an employees salary of $1,500 per fortnight before tax by reimbursement through the BAS system.

Whilst the legislation and finer details for the payment have not yet been released (although expected shortly), on 5 April 2020, Treasury has set out some guidance for Employers to assess their potential to access the payment.

The important points of note are:

• Register your interest on the ATO’s website (an online application will be available at a later point in time);
• Employee information will need to be provided to the ATO;
• Each employee (even if paid less than the amount) must be paid a minimum of $1,500 per fortnight before tax;
• Employees must be notified that they are receiving the JobKeeper Payment;
• The ATO will expect monthly information about eligible employees to be provided; and
• Business turnover must be expected to fall by at least 30% (for business with turnover <$1m).

The payments will be for a maximum period of 6 months from 30 March 2020. These reimbursement payments from the ATO will commence in the first week of May through the BAS system.

One of the most uncertain aspects of the payment is the estimation of turnover. Treasury has indicated that the estimation is to be based upon historically lodged BAS one year prior. As an example, to determine whether you expect turnover to fall by 30% in the June quarter BAS and you are a quarterly BAS lodger, you should look at your turnover figures lodged in your June 2019 quarter BAS.

Whilst there is a degree of uncertainty in accurately predicting a fall in turnover, as well as the potential for 12 months prior not being a true indication of estimated turnover, it appears the Commissioner of Taxation will be provided with a discretion to set out alternative tests to establish eligibility and to take additional information into account to determine whether a business has been significantly affected by the impacts of Covid-19.

It is expected that there will also be latitude provided to businesses that estimate a 30% reduction in turnover, in good faith, but actually experience less of a fall than expected.

The Federal Government have no doubted decided to use the ATO systems through BAS lodgement to claim these payments as a method of ensuring that only businesses who are complying with their lodgement obligations are able to claim the payment.

If you have concerns about your lodgement history with the ATO and seek advice on your compliance and eligibility, please contact us to make an appointment via telephone or video conferencing to obtain more specific and detailed advice.

Further details that have been released by Treasury can be found here as well as an FAQ on commonly asked questions.

Whilst this article attempts to explain the JobKeeper Payment as succinctly as possible, we suggest that every business should contact their Accountant to determine whether this payment is suitable for their business.

For more detailed advice, our experienced solicitors are available to discuss your specific circumstances. Do not hesitate to contact us on 9523 6111.  

The Novel Coronavirus or Covid-19 is causing chaos and disruption to all aspects of daily life in Australia, and around the world. It is in these uncertain times that the public often need advice and guidance on issues which may once have seemed straightforward or automatic. 

One of the areas where we have seen the biggest concern from the community is shared parenting of children by separated parents. Our Family Law Team has recently had an influx of calls from concerned parents, wondering what their rights and obligations are when it comes to shared parenting during this pandemic. 

Whether you have been managing your parenting arrangement between yourselves, whether you are engaged in a parenting dispute before the Court or whether you already have Parenting Orders, right now, confusion is rife for all parents. 

We know that no two families are the same, but in all the confusion, there are some key principles that all parents should keep in mind:

• You should always act in the best interests of the child. This is your primary obligation at all times. 
• Open and respectful communication between parents will make the situation easier for both the parents and the children. 
• Your “usual” arrangements might not work right now and it is OK to find short term solutions to get through this pandemic. If you do reach a short term alternate arrangement, ensure it is in writing. 
• This will be a difficult and uncertain time for your child. Stability and time with each parent will help them through. Conflict or not seeing a parent will only make things more difficult for the child. 
• This is not an opportunity to “get back” at the other parent or use Covid-19 as an excuse to withhold a child from their other parent.  Ask yourself “Am I acting reasonably?”. 
• If you are in dispute with the other parent about the impacts of Covid-19, there are many options available to assist parents such as advice lines, mediation and ultimately, the Courts are and will continue to operate. 

All in all, the advice from the Government and medical experts is that this pandemic will pass and things will return to normal. Your goal should be to get your child through this pandemic safely and with as much stability as possible. As always, the best things for children are routine and stability, so as much as you can, focus on the needs and best interests of your child. Not everyone will be able to put aside their differences, but the more you can, the better off your child will be.

The Family Court is well aware of the difficulties parents and children will face during this  pandemic. The Chief Justice of the Family Court, The Honourable Will Alstergren has released a media statement with some general advice and guidance for parents. This advice is general in nature and we appreciate that every family is different.

Follow this link for access to the media release: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/mr260320

For more detailed advice, our family team, Jodie Jamieson and Daniel Stephenson are working with new and existing clients to guide them through this confusing and uncertain time. They are able to provide detailed advice, specific to your circumstances. If you would like to get some advice about your specific situation, please do not hesitate to contact us on 9523 6111.  

To our valued clients

WE WILL REMAIN OPEN

Given the concerns regarding Covid-19, we are closely monitoring the advice from the Government as to how we will continue to operate during this difficult health situation.

Currently, all of our Lawyers are available to confer with you in person, by telephone or by Skype/Video conferencing if necessary. In an attempt to minimise potential outbreaks, we would prefer to limit any personal face-to-face conferences at our office to essential meetings only. If your matter or enquiry can be dealt with over the phone or by email, we ask that you consider this course.

We are conscious of protecting all of our staff here in our office, so if it is essential that you attend our office, please do not do so if you are feeling unwell, and always advise us if you have been in close contact with anyone returning from overseas before you attend our office so we can make appropriate arrangements.

All our Lawyers and support staff are available to assist you at this difficult time with your current matter or any new legal matter that may arise for you. If in the future we are directed by the Government to close our office, our Lawyers will be working from home and will continue to be in a position to assist you with any current or future matter.

Please ensure that you have all of your personal legal documents up to date, in case of any health emergency.

If your matter is presently before a Court or Tribunal or scheduled for a Mediation, we will be in personal contact with you as soon as we are notified of how your particular matters will proceed, given the closure or adjustment to services of many Courts, both at Federal and State level.

Please contact us to discuss further if you have any concerns or enquires.

GIBSON HOWLIN LAWYERS

25 March 2020

Once a Will is executed in accordance with the Succession Act 2006 (NSW) the Executor named in it is entitled to seek Probate of that Will.  However, in some circumstances, a challenge may be made to the capacity of the Testator to make a valid Will.

Challenges of this nature are becoming more common with old age, the existence of guardianship and financial management orders, drug or other alcohol addiction and the scourge of Dementia in an ageing society.

The Courts in NSW have historically required compelling evidence of lack of capacity before making a finding which might be adverse to the wishes of a deceased person set out in their Will. 

The recent case of Carr v Homersham (2018) expressed, in general terms, the relative elements to be considered by the Court if testamentary capacity is challenged.  In summary, those elements are:

• The Testator must have appreciated fully the extent of his or her assets which are the subject of the Will;

• The Testator must have understood the importance of making the Will and the effect that it may have on his or her estate;

• The Testator must have been able to consider and otherwise understand the nature of potential beneficiaries in a claim by those persons both legally and morally to the Testator’s estate;

• The Testator must not have been suffering from any condition which would interfere with his or her normal decision-making process;

Very importantly, each of the above elements need to be examined by the Judge hearing such a case.  The Testator must have had capacity at the time the Will was signed.

Within these judicial guidelines, each case will be determined on its own facts and circumstances.  There are a number of Court Decisions favourable to challenges and a large number unfavourable.  His Honour Chief Justice Gleeson in 1985 in the case re Estate Griffith made the following comment:

“testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards.  A person may disinherit the child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the Will invalid”

If you are involved in an estate, whether as a beneficiary, executor or otherwise, and there is a challenge to the testamentary capacity of the deceased Will maker, we can give advice in this area.  Our role is to consider the facts and circumstances of each particular case and then give you advice on any questions that you may raise in relation to issues of testamentary capacity.

For advice in this area, please make an appointment with:

• Matt Howlin through his Secretary, Ashleigh Abbott: aa@gibsonhowlinlawyers.com
• Johnathan Neofytou through his PA, Zoey Elshab: ze@gibsonhowlinlawyers.com

In NSW the Succession Act 2006 is the relevant legislation dealing with the formalities involved in executing Wills.  The issue of “informal Wills” was recently considered by the Court of Appeal in Victoria in Sultanova v Bolgarow (2019).  While that case was decided in another State it reached conclusions of law and fact which are relevant to virtually all Wills made in NSW. 

The facts in that case were as follows:

• The Testator made a Will during the course of an appointment with her Solicitor;
• The Solicitor took extensive file notes, then wrote to the Testator and advised that her Will was ready for signature. The letter gave a summary of the contents of the draft Will;
• Shortly after receiving that letter the Testator telephoned her Solicitor and told him that the draft Will she had read was… “exactly what she wanted”;
• In trying to make an appointment to execute the Will the Testator indicated to a secretary of the Legal Firm that she did not want to deal with any other Solicitor and would wait for an appropriate appointment time with her choice;
• Shortly after the telephone call with her Solicitor the Testator unexpectedly died.

The Court of Appeal, by majority, noted that the real issue to decide was whether or not the Testator had adopted the unsigned Will as her final Will.

The finding of the Court of Appeal was based on the peculiar facts of this particular case but, on balance, the Court held that it was clearly the Testator’s intention to not only make the Will, but to record it in writing and to later acknowledge that its contents were “exactly” in accordance with her instructions.

The unsigned Will was probated.  The estate was administered in accordance with that informal, unsigned document.

There are other cases decided differently, but all based on the individual facts of each case.  It is important that our clients understand that in making a Will their instructions must be clear, the Will must record those instructions accurately and (in the absence of execution of the Will) there must be some form of express acceptance of the terms of the document prepared by our Solicitors.

In this particular case, it is our view that should the Solicitor have not been instructed to prepare a Will in the manner consistent with the facts of this case, the Testator would have died intestate.  In other words, without a Will.  In those circumstances the Beneficiaries named in her Will would have received no benefit from her estate.  An outcome she did not want.

To start a discussion in relation to the making of a Will or to check your existing Will, please make an appointment with:

• Reg Gibson through his Secretary, Nadia Hollow: nh@gibsonhowlinlawyers.com
• Matt Howlin through his Secretary, Ashleigh Abbott: aa@gibsonhowlinlawyers.com
• Johnathan Neofytou through his PA, Zoey Elshab: ze@gibsonhowlinlawyers.com
• Daniel Stephenson through his Secretary, Michelle Camilleri mc@gibsonhowlinlawyers.com

In previous updates we have indicated that disputes in Deceased Estates are becoming more common in our society.  For that reason alone whether you are an Executor, a named Beneficiary or a prospective Beneficiary in an Estate, it is in your best interests to contact our Firm and obtain appropriate legal advice on your rights.

Over the last few years the Supreme Court of NSW has exercised judicial discretion in many cases regarded now as too generous to some people who have made claims under the Succession Act 2006 (NSW) to obtain or increase their share in a Deceased Estate.  Only those persons who are defined as eligible persons under the legislation can make such a claim.  However, we have recently seen a consistent increase in the number of claims being made.

A Decision of the NSW Court of Appeal Lodin v Lodin (2017) tightened up the tests applied by a number of Judges in the Supreme Court of NSW when they determined whether or not an Order for Provision should be made in certain instances. 

In effect, the NSW Court of Appeal has made it clear that a Claimant who is in poor financial circumstances cannot use that fact to determine whether or not there has been adequate provision in the Will (see Sgro v Thompson which was considered in Lodin). 

In a similar way, the Court in Lodin made it clear that simply because a Claimant would ordinarily be a “natural object of testamentary recognition”, for example a child of a deceased parent, that fact should not be confused with all of the other tests set out in the legislation as to whether or not an Order for Provision should be made at all. 

The Decisions indicate a much more structured approach to the exercise of judicial discretion under the Succession Act 2006 (NSW) and a significant tightening of attitudes in the Court to unmeritorious claims.

If you require advice in this area, you should make an appointment with Matt Howlin through his Secretaries:

• Michelle Camilleri (Mon & Tues): mc@gibsonhowlinlawyers.com
• Ashleigh Abbott (Wed – Fri): aa@gibsonhowlinlawyers.com

In 2010, now more than seven years ago, the Australian Consumer Law (ACL) was legislated.  Much of the ACL was drafted to help consumers in relation to various Unfair Contracts. 

Importantly, the ACL was extended further at the end of 2016 to allow small businesses to have the same sort of protection in relation to what are called “Standard Form Contracts”.

What is a Standard Form Contract?

Generally, they involve non-negotiable terms where one party has most of the power of bargaining and the form of Contract has been pre-prepared. 

Common examples include Waste Management Contracts, some IT Contracts for hosting of websites and some Mobile Phone Contracts.

What constitutes a Small Business Contract?

Any business is a small business if it employs less than twenty people, and the price payable under that Contract is no more than $300,000.00 paid over a period of less than twelve months.

The case of JJ Richards and Sons (2017)

JJ Richards is one of the largest privately-owned Waste Management companies in Australia, particularly involving recycling and waste collection services.  It has controlled the Waste Management Industry for some years and invariably insists on the use of its pre-prepared Standard Form Contract. 

Towards the end of 2017 the Australian Competition and Consumer Commission commenced proceedings in the Federal Court of Australia under the ACL alleging, amongst other things, that the JJ Richards Contract was unfair and should be struck down.

Decision of the Federal Court

 The Court found that the JJ Richards Standard Form Contract was unfair for a number of reasons, importantly some of them being:

• The Contract could not be easily cancelled by the customer and would automatically renew unless cancelled in a specific and unreasonable manner;

• JJ Richards was able to increase its prices without any discussion with the business owner;

• JJ Richards could charge for services which were not provided and also kept to itself exclusive rights to enter property to remove waste; and

• Importantly, it attempted to prevent a small business from cancelling its Contract while any money (whether admitted or not) was unpaid to JJ Richards.

What does the Court’s decision mean to a Small Business?

The ACL does not impose a fine or penalty if a Standard Form Contract is found to be “unfair” within the meaning of the legislation.

However, the Court has the power to declare the Standard Form Contract void, which would mean that one party to it could not enforce its rights against the other. 

If a Small Business believes that it has signed a Contract and that Contract is in standard form and may be unfair, then you should contact our Firm for advice as to how you might terminate it or vary its terms by negotiation.

Advice in this area can be given by Matt Howlin and Jason Green.

As you would already be aware, the law is intended to reflect community standards and changes regularly to do so.

The Australian Government at the end of 2017 passed legislation on Same Sex Marriage by amending the Marriage Act 1961 (Cth).

It is our view that a Will made by a person prior to entering into a legal Same Sex Marriage will have their Will revoked by that Marriage under s12 of the Succession Act 2006 (NSW).

We would suggest that you contact Jodie Jamieson, Matt Howlin or Reg Gibson for advice if you are contemplating entering into a same sex Marriage and, at the same time, reviewing your Will.

What documents may constitute a Will?

 The Succession Act 2006 (NSW) gives guidelines to the Supreme Court of New South Wales in determining what “documents” might constitute a valid Will.  Those guidelines are ever changing.

The recent case of Nichol v Nichol (2017) [decided in the Supreme Court of Queensland] found that a saved text message on a mobile phone was a “document” within the meaning of the relevant legislation.

In this case Mr Mark Nichol committed suicide but, shortly before he did so, attempted to send a text message from his mobile phone to a friend.  That text message used the words “my Will”, identified his property and asked for his ashes to be scattered after cremation. 

The Court found that, in all of the circumstances but particularly as Mr Nichol was contemplating his own death, that the text message (although never received by the recipient) was a Will.  It subsequently Probated that text message as a Will.

If you have any questions in relation to the making of a Will, or interpreting a Will already made, please make an appointment with:

• Matt Howlin;
• Reg Gibson;
• Johnathan Neofytou; or
• Daniel Stephenson

for appropriate legal advice.