High Court Ruling Affects Apartment Owners

A High Court presiding over building deficiencies in a multimillion-dollar apartment complex in Chatswood sets to make it difficult for owners to search for legal compensation for substandard apartments.

A recent ruling of a multi-million dollar apartment complex in Chatswood

The two year battle ending in October 2014, has seen the High Court rule ,  that the owners corporation of serviced apartments in a 22-storey building in Railway Street could not sue the builder, Brookfield Multiplex, to recover the cost of fixing alleged defects in common areas.

The ruling comes prior to new building laws that are set to take place in NSW at the beginning of December, which seek to limit the right of the apartment owners for property defects.  

Owners Corporation Network chairman Stephen Goddard, a strata lawyer, specified the State Parliament should acknowledge the “gaping hole in consumer protection” for residential apartment owners.

The High Court found that contracts relating to the construction and sale of the apartments set out the situations in which the builder or developer was liable for defects in building work.

The decision initiated that Brookfield did not owe the buyers of the apartments a separate duty of care under the law of negligence to avoid causing them economic loss resulting from alleged defects in common areas, such as cracks in render on the facade of the building. Brookfield did not have a contract with the owners corporation.

Mr Goddard said he understood residential owners corporations would be in the same position.

Source: http://www.smh.com.au/nsw/high-court-decision-bad-news-for-apartment-owners-20141008-10rw0e.html

 

How to Help your Solicitor – Getting the best use of us here at PTW Law

A successful solicitor/client relationship requires cooperation on both sides. There are various things you can do to help your solicitor.

Give full and clear instructions

To represent your interests successfully your solicitor needs information. Being candid about your matter, including its history and what you are trying to achieve, will help your solicitor provide better advice. It is important for us to know all details as soon as possible so we are not surprised; especially if a court case is involved. Facts which may not seem important to you may have significant legal consequences.

It is a solicitor’s duty to maintain the strictest confidentiality about their clients, so you need not feel embarrassed or afraid, or conceal facts.

Be honest and lawful

It is unwise to lie to your solicitor or to expect your solicitor to uphold a mistruth. Solicitors have a duty not to mislead. For instance, if you supply false information in an affidavit or false evidence during a case and you do not allow your solicitor to correct the misinformation; your solicitor must withdraw from your case. So you could end up without proper representation and have the expense of finding a new solicitor.

If you are involved in a criminal law matter, an admission of guilt will restrict how your solicitor can present your case to the Court.

Be prepared

Before you speak with or visit us here at PTW, it is a good idea to write down a summary of your matter, including questions and the contact details of all persons involved. You will also need to collate any documents and show us. If you are not sure what is relevant, it is best to take along all documents pertaining to your matter and let us assist in deciding what is important. Being prepared will save us time and help to reduce your costs.

Follow instructions

So that we can serve you efficiently, follow our instructions as quickly as possible. For instance your solicitor here at PTW Law may request more information or documentation. Use or ask for a checklist of what you need to provide and when.

Ask questions

The law is complex with lots of unfamiliar words and processes. If you are confused or have any questions, ask us for an explanation as soon as possible. This will minimise the likelihood of misunderstandings further down the track. Don’t sign any document until you fully understand what it is about. Get us here at PTW Law to address any concerns you have.

Keep in contact

Legal issues can take a long time to resolve. Your solicitor should keep you up to date with the progress of your matter. Agree on how frequently you will be informed and by what method, such as telephone or email.

Also inform us immediately if the circumstances of your matter or personal circumstances change. Even slight changes may mean that we will have to take a different approach.

Trust your solicitor

To practice law in New South Wales solicitors must have successfully completed a law degree and a practical legal training course. Once they are practicing solicitors, the Law Society helps to ensure their skills and knowledge are up to date by imposing mandatory continuing legal education requirements.

Carefully consider what your solicitor advises you to do. Their advice is based on years of experience and training. Sometimes the best course of action may not be what you want to hear, but we here at PTW, as your advocates, are obliged to have your best legal interests at heart.

We here at PTW Law look forward to serving you better. Established for over 60 years in the South Sydney/Eastern Suburbs areas, we pride ourselves on excellent knowledge, strategic advice and personal care and attention.

Source: http://www.lawsociety.com.au/community/thelawyerclientrelationship/Howtohelpyoursolicitor/index.htm

 

 

Asylum Seekers – The Consequences

Immigration minister Scott Morrison introduced the Mitigation Amendment (Protection and Other Measures) Bill in response to a High Court decision that ruled invalid his move to cap the number of protection visas at 2773 until July 1.

Despite its innocuous title, the bill contains a number of retrograde provisions that will have major consequences for asylum seekers entitled to Australia’s protection under international law.

Evidence for claims

First, the bill proposes a new section in the Migration Act requiring asylum seekers to specify “all particulars of their claim” and “to provide sufficient evidence to support the claim”.

Failure to do so risks refusal of a protection visa. If new claims or evidence are introduced at the review stage, without a satisfactory explanation, then the Refugee Review Tribunal must draw a negative credibility inference – in other words, it must conclude that the person is fabricating their claim.

At first blush, this might seem reasonable. Why wouldn’t someone present all the details of their claim upfront? The problem is that it is very common for people who are afraid – such as asylum seekers fleeing persecution and other serious human rights violations – not to tell their full story at first, especially if they are victims of torture or trauma. Post-traumatic stress disorder may impair their ability to recount things lucidly or sequentially. They also may not appreciate what kind of information is important for their protection claim.

This confusion is compounded for people who do not speak English, have little understanding of Australian law, and who, since March 31, have no access to free legal assistance. Even if they do have legal assistance, it can take a long time for trust to be established with their lawyer and for a coherent case to be formulated.

 Refugee law also requires decision-makers to assess an asylum seeker’s risk of persecution on the date the case is heard, not the date the claim was lodged. This necessarily requires the most up-to-date information to be considered.

This new provision therefore makes it much easier for a decision-maker to refuse protection, which in turn risks Australia breaching its international obligations.

 

No identity documents, no protection

Second, asylum seekers who cannot provide a reasonable explanation as to why they don’t have identity documents, or have destroyed them, risk having their protection claim refused.

The United Nations Refugee Convention says governments must not penalise asylum seekers who arrive without a passport or visa. The drafters of the Refugee Convention recognised that the very nature of refugee flight may mean that people arrive without travel documents.

If you are fleeing persecution by the Syrian government, for instance, you’re hardly going to request a passport so that you can leave. Sometimes not having documents can in fact underscore the legitimacy of the refugee claim. And Australian law already has adequate mechanisms to deal with situations where a person’s identity is unclear.

Unlike court cases, refugee assessments are a fact-finding exercise, not an adversarial process. These procedural changes create presumptions against asylum seekers in a complex process that is already weighted in favour of the government. Increasing its complexity by creating more barriers does not improve the process, nor make it more likely to reach a just decision.

 

Raising the threshold for return

Third, the bill seeks to raise the threshold for people seeking protection from return to a country where they risk being arbitrarily deprived of life, subjected to the death penalty, tortured, or subjected to cruel, inhuman or degrading treatment or punishment. This is known as complementary protection, and reflects Australia’s obligations under the UNConvention against Torture and the International Covenant on Civil and Political Rights.

There is already another bill before parliament seeking to abolish complementary protection entirely, which would mean that the immigration minister alone could decide whether or not to return someone to a country where they claimed to be at risk. His decision could not be reviewed by the Refugee Review Tribunal.

Former immigration minister Chris Evans likened this ministerial discretion to “playing God” with asylum seekers’ lives. A key reason why complementary protection was introduced in the first place was to provide greater accountability and transparency in decision-making.

If the other bill doesn’t pass the Senate, then this new bill sets out the reserve position. In a refugee claim, the decision-maker has to assess whether the asylum seeker has a “well-founded” fear of persecution. In Australian law, this is interpreted as whether the asylum seeker faces a “real chance” of persecution. This can be a less than 50% chance, provided it is real and not far-fetched.

However, the government wants to raise the bar for complementary protection cases so that the risk of harm is assessed on “the balance of probabilities”. This is at odds with the test in international law, and higher than that applied in countries such as the United Kingdom and New Zealand.

In reality, it means that if even an asylum seeker has a 49% chance of being tortured, Australia will still send them home.

 

No permanent protection

Fourth, the bill seeks to insert a new barrier into the Migration Act preventing refugees on a temporary protection visa of some kind from ever making an application for a permanent visa.

This means that people granted a temporary visa – with no right to travel or sponsor family members stuck back home – will be precluded from applying for any other category of visa unless the immigration minister personally intervenes.

Overall, the bill degrades refugee protection under Australian law. It is designed to reduce adherence to Australia’s international legal obligations and make it easier to refuse refugees on technical grounds. The government’s rhetoric on asylum has been consistent in its message of deterrence for those arriving by boat. This bill underscores that the driving force in Australian refugee law will be punishment, not protection.

Source: http://www.law.unsw.edu.au/news/2014/06/punishment-not-protection-behind-morrison%E2%80%99s-refugee-law-changes

Privacy Breach: 254,000 Australian Online Dating Profiles Hacked

The Australian Privacy Commissioner, Timothy Pilgrim, has found that Cupid Media Pty Ltd (Cupid) breached the Privacy Act 1988 by failing to take reasonable steps to secure the personal information held on its dating websites.

Cupid operates over 35 niche dating websites based on personal profiles including ethnicity, religion and location. In January 2014, hackers gained unauthorised access to Cupid webservers and stole the personal information of approximately 254,000 Australian Cupid site users. The personal information compromised included full name, date of birth, email addresses and passwords.

The Commissioner said that businesses must remain vigilant about information security. This case highlights the importance of organisations conducting ongoing testing and maintenance of security systems to minimise the risk of a hack succeeding, and to ensure they are able to respond quickly if one occurs. Cupid’s vulnerability testing processes did allow it to identify the hack and respond quickly. Hacks are a continuing threat these days, and businesses need to account for that threat when considering their obligation to keep personal information secure.

However, the investigation found that, at the time of the incident, Cupid did not have password encryption processes in place.
‘Password encryption is a basic security strategy that may prevent unauthorised access to user accounts. Cupid insecurely stored passwords in plain text, and I found that to be failure to take reasonable security steps as required under the Privacy Act,’ Mr Pilgrim said.

The incident also demonstrates the importance of securely destroying or permanently de-identifying personal information that is no longer required. The Commissioner found that Cupid had not done so.
‘Holding onto old personal information that is no longer needed does not comply with the Privacy Act and needlessly places individuals at risk. Organisations must identify out of date or unrequired personal information and have a system in place for securely disposing with it.’

‘I would also remind consumers using internet dating sites to regularly update your privacy settings, change your passwords and be careful about the personal information you share. You don’t want to become a victim of identity theft or a scam.’

The Commissioner noted Cupid’s collaborative and cooperative approach in working with the Office of the Australian Information Commissioner (OAIC) during the investigation, as well as the significant remedial steps taken by Cupid in response to the data breach.

‘I encourage organisations to proactively notify the OAIC of a data breach so that we can work with them and assist with appropriate remediation if necessary’. The OAIC has issued a data breach notification guide that outlines steps businesses and agencies can take to respond to, and mitigate the results of, data breaches.

Source: http://www.oaic.gov.au/news-and-events/media-releases/privacy-media-releases/privacy-breach-245-000-australian-online-dating-profiles-hacked

Applying for a TFN? Simple!

Trying to maximise your deductions may be the main challenge faced by Australian taxpayers, but it certainly isn’t the only one. Among other tax-related tasks perhaps the two most basic occur at the opposite ends of the life cycle – getting a tax file number (TFN) and notifying the tax office of a person’s death. Due to the need, in the first case, to provide proof of identity and, in the second, proof of death, the process can’t be finalised online. But while this is still the case, a new arrangement with Australia Post means it is now possible for most people to complete the process more quickly and easily by presenting the required proof at 460 of Australia Post’s network of post offices.

Which post offices are included? This is easy to check since anyone filling out an online application for a TFN or notifying the tax office that someone has died is provided with a convenient link that will identify a post office near you where you can complete the process.

If you would like more information, please contact Tolly Saivanidis of our offices.

http://finance.ninemsn.com.au/article.aspx?id=8819564

 

Capital Gains Tax – Time is ticking

It is often assumed that simply living in a dwelling even for a short period of time will entitle you to an exemption from CGT. This is because you may think that you have a right to claim it as a principal place of residence which you receive an exemption from capital gains tax. This to some extent is false – there is alternate criterion that needs to be met.

More recently, a decision came to light via the Administrative Appeals Tribunal (ATT), which rejected an application for CGT exemption notwithstanding the fact that the taxpayer was said to have occupied the dwelling with his estranged de facto for three months. This short time period of three months is foreseen as an unofficial minimum amount of time for the CGT exemption to activate, regardless of the fact that there is the absence of a prescribed legislated time period.

Not only did the AAT inquire whether the occupancy conditions had been met, it said there was no evidence of any gas or electricity accounts for the house in the taxpayer’s name, his mail was being directed to his sister’s Queensland address, he obtained a Queensland driver’s licence using her address and also used it for his income tax return.

In general, a dwelling you are no longer living in is unlikely to qualify for CGT exemption unless you and your family lived in it, your personal belongings were in it, it was the address your mail was delivered to, it was your address on the electoral roll, and services were connected (for example, telephone, gas or electricity). As previously mentioned, the amount of time you spend there is also associated.

If you would like any information concerning CGT, please contact our Mascot office of Pryor Tzannes & Wallis Solicitors.

What is an Enduring Guardian?

An enduring guardian is a substitute decision-maker of your choice with legal authority to make health and lifestyle decisions on your behalf if needed, such as where you may live, the services you need and what health care you receive, or consenting to medical and dental treatment on your behalf.

An enduring guardian legally appointed by you should consider your views both past and present. The enduring guardian should also consider the views of professionals and other people important in your life, take into account the circumstances existing at the time then make decisions on your behalf should the need arise.

The enduring guardian’s powers only come into effect and remain while you lack capacity to make decisions. The enduring nature of the power means that the guardian’s authority continues while you are incapacitated.

If you would like to know more information, please contact PTW Law or come into our Mascot offices.

As an example of how an Enduring Guardian may work, consider the following:

Olga is an elderly widow diagnosed as being in the early stage of dementia. Olga has two sons. Her oldest son Michael lives interstate and has little contact with her. Her younger son James lives nearby and visits regularly. She feels James has a good understanding of her wishes and preference to live at home for as long as she is able.

Olga knows her son Michael thinks she should be in a nursing home and the house sold. She decides to talk to her solicitor about appointing her enduring guardian and the decisions she thinks will need to be made in the future.

Olga decides to appoint her son James as her enduring guardian. Olga knows that the authority she gives James will come into effect when she loses capacity to make these decisions for herself and that James will continue to have this authority as long as she remains unable to make her own personal and lifestyle decisions and acts in her best interests.

What is a Power of Attorney? (NSW)

A Power of Attorney is as important for life planning as making a Will. Many people prepare a Will but do not give the same consideration to appointing an attorney until it is too late.

Appointing an attorney gives your attorney the legal authority to look after your financial affairs on your behalf. It should be accurately drafted by a solicitor with the proper advice given.

You can appoint an attorney to act for you in a variety of circumstances such as if you are on an extended interstate or overseas trip, or for a time when you are no longer able to manage your affairs. PTW Law can help you identify the type of attorney service that suits your needs.

There are many reasons to consider using a Power of Attorney:

  • you may wish to be free of the day to day demands of financial paperwork and record keeping;
  • you may want to place funds in a secure account with interest calculated daily and flexible access;
  • you may be going overseas or around Australia and don’t want  or cannot deal with these affairs while you’re away;
  • you may not wish to burden a family member or friend with the responsibility of looking after your financial affairs;
  • or you may simply find the demands of financial management have become too much for you to handle on your own.

 Should you have any further questions relating to a Power of Attorney or wish to make an appointment to take out a Power of Attorney with PTW Law, contact Tolly Saivanidis of our Mascot offices.

 

Source: NSW Government Website

What is a Will? (NSW)

 

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A Will is a legal document that should be prepared by a lawyer clearly sets out your wishes for the distribution of your assets after your death. Having a clear, legally valid and up-to-date Will is the best way to ensure that your assets are protected and distributed according to your wishes.

Should you die without a Will, your estate may be divided according to a Government formula – a formula you may not be comfortable with.

Your Will is arguably the most important document you will ever sign, so it’s advisable that you have it prepared by an expert who is supported by accountants, taxation, investment and legal professionals such as those we have on staff at PTW Law.

 

Why create my Will with PTW Law?

  • By writing your Will using PTW Law, you are choosing an organisation that has over 60 years o
    f experience
  • We will always be around to ensure that your wishes are carried out with impartiality and integrity.
  • PTW Law provides a full estate administration service starting to ensure all necessary steps are completed
  • Our fees reflect the responsibility of being executor (should you decide that this is appropriate) and are set lower than other Trustee companies.
  • You can make and change your Will as often as required

To create your Will with PTW Law, contact Tolly Saivanidis of our Mascot offices.

 

Source: NSW Government Website

Personal Property Securities Register (PPSR)

What is a PPSR?

It is an online register introduced on 30 January 2012 that protects your business when buying, selling or leasing out property including valuable goods, stock, vehicles, machinery, office equipment, crops and livestock – almost anything except real estate.

Are you selling on terms, such as retention of title, or leasing out valuable goods?

Registering your interest in goods which you haven’t been paid for can help you to recover the debt if your customer doesn’t pay or becomes insolvent.

Is your business buying valuable second hand items?

Additionally you can check the Personal Property Securities Register to see if the particular second-hand machinery, equipment, vehicles, stock or other valuable used items you wish to purchase is debt-free and secure from repossession.

TIP: Doing a quick search before you buy is low cost, easy and immediate.

For more information visit www.ppsr.gov.au or for further information including searching, please contact us here at PTW Law.