FEATURED ITEMS

Elder Law

The relatively new and rapidly developing field of practice known as "Elder Law" deals with a range of issues of concern to our "senior citizens", their families and their carers.

The territory includes the legal and practical aspects of Powers of Attorney, legal issues relating to aged care, assessing legal capacity, guardianship provision for those in need of care and protection, family violence and financial abuse in relation to the elderly and capital raising options for retirees. In addition, of course, we are concerned to ensure that our "senior citizens" have in place appropriate Wills and that their superannuation and related financial arrangements are satisfactory to their needs.

A number of our Practitioners have long experience in these matters and are actively engaged in ensuring their knowledge of developments in the field is current. Any one of Peter Spear, Geoff Reeve and Deb Anderson would be pleased to assist you with Elder Law issues.

Peter Spear
 

Family Law - Split Superannuation

In 2002 the Family Law Act was amended to allow parties to a marriage to split superannuation. De facto couples can also split superannuation if they separated after 1 March 2010 or by agreement.

Splitting superannuation does not convert a Superannuation Fund into a cash asset. A Split Superannuation amount is still the subject of Superannuation Laws. Any split amount is added to the other party's Superannuation Fund until that party satisfies the requirements for a cash release.

Separating couples may split their superannuation by:
(a) entering into a written Superannuation Agreement;
(b) obtaining Consent Orders in a Court to Split Superannuation;
(c) if no Agreement can be reached, by asking a Court to Order a Superannuation Split.

Superannuation may be split in any proportion. Separating couples are able to agree amongst themselves as to the proportion of a Superannuation Split and trade off that Split against cash assets or property if they wish.

There have been a number of cases where Courts have ordered an unequal split of Superannuation to enable for example, a Mother or Wife to retain the former matrimonial home to house the children of the relationship and take less Superannuation. The benefit of such an arrangement is that the children of the relationship continue living in a stable environment with their Mother for the foreseeable future and that the party retaining the property will be able to plan financially for the years ahead.

Ross Brown
- Accredited Specialist, Family Law
 

Business Disputes

Any business enterprise that is not a sole trader or a sole director/secretary company contains the potential for disputes to arise between the owners of the business. Partnership disputes are dealt with under the Partnership Act 1958. Company disputes and, following a recent decision of Vigliaroni & Ors v CPS Investment Holding Pty Ltd [2009] VSC 428, any business dispute involving a company as Trustee of a trust, are dealt with under the Corporations Act. A dispute within a Trust structure where there is not a company as Trustee would be dealt with under the terms of the Trust Deed and equity law/case law principles.

Two "hindsight" lessons from business disputes are:

1. Setting up at the outset documents drafted to cater for the particular circumstances of the business covering employment terms, contributions of each party to the business and time commitments each will provide and earmarking certain decisions as "special" is a good way to minimize the possibility of disputes arising;
2. Seek legal advice, read the documents that represent the agreement between business owners and mediate, (rather than litigate), the dispute.

The Vigliaroni case highlights the difficulty that Courts generally face in these types of disputes - the parties do not get along and so the business interests must be separated. One party either buys the other out or the business is sold and the proceeds distributed. If there are sufficient assets in the business or ability to raise finance, any legal wrongs committed in the course of the business being conducted are corrected for by the Court. Section 233 of the Corporations Act 2001 provides for a very wide range of remedies which can be used to bring about an equitable result.

The benefits of having a mediation clause in a business agreement are obvious - litigation is expensive for the parties and time consuming and stressful for all concerned. If parties are forced to mediate before taking proceedings under the Corporations Act or Partnership Act, much money, time and effort can be saved.

If disputes are developing within a business and the documents establishing the agreement between the owners are not clear on some of the issues which will potentially become disputed, it is wise to face those issues without delay and document how those issues will be handled.

Matthew Kinross-Smith
Accredited Specialist, Business Law
 

Property Development

Lost time and lack of forward planning are major causes of developers losing the profit in their development. Delays can occur when council requirements are not met, when things are done in the wrong order and from trying to do things yourself when you should have a professional assisting you.

If you are considering a development such as a subdivision, it is important to involve your lawyer at all stages. Whether your development is a 2 lot subdivision, a multi lot or multi storey development, consideration must be given to many legal aspects surrounding the development.

A developer should also take advice and assistance from other professionals such as surveyors, town planners, accountants, estate agents, advertising and marketing professionals as well as involving a bank or financial institution.

Whilst it might seem an "overkill" to consider all these people, there may be some aspect of the development being intended that could result in substantial delays and expense if the proper course or advice is not taken at the outset.

Easements, Covenants, Agreements under Section 173 of the Planning & Environment Act 1987, Rights of Carriageway and roads, Owner's Corporations (formerly body corporate) and Mortgages are some of the legal issues that need to be considered in undertaking developments.

In addition, with your lawyer and surveyor working together and dealing with Council many pitfalls can and will be avoided thereby minimising delays with the development. The cost of early professional assistance is usually recouped many times over by avoiding delays and interest cost blow outs later in the development.

It is important to obtain legal advice at the outset as this is a cost-effective means of proceeding with the development.

Lindsay Gordon

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