The builder is refusing to pay my last invoice because he has not been paid. He
has referred me to a clause in the contract which says, “All progress payments of
the subcontract sum shall be made within 10 days after payment is received by the
contractor, from the principal”. What can I do about that?
I see from your email address that you are a concreting contractor. Your work is
covered by the Building and Construction Industry Payments Act. “Pay if and
when paid” clauses, like the one in your contract, are illegal under Section 16 of
that Act. Tell this to the builder and if he still refuses to pay, consider making a
Payment Claim under the Act to get your money back.
For further information, please contact Michael Cope in our Brisbane office.
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My accountants told me I need to get my trust deed amended and if I don’t I could end up paying more tax. What is that all about?
The Tax Office has announced that for this financial year, they will be paying particular attention to the distribution of income from trusts. This is associated
with a recent High Court case which effectively means that most trust deeds used
by business people need to be reviewed and most likely amended to avoid the risk
of ending up paying more tax than you might otherwise.
For further information, please contact Sean Diljore in our Brisbane office.
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I decided to close down the airconditioning side of my contracting business. I was told that so far as the BSA licence goes, all I have to do is tell BSA and then they will cancel the licence next time it is due for renewal. Is that all I have to do?
Not if you have put up a Deed of Covenant and Assurance (“DCA”) to support the BSA licence as many contractors do. It’s not even as simple as having the BSA cancel the licence and return the DCA to you. The DCA is a personal guarantee by you and needs to be taken seriously. In the current case we have, a builder was told what you were told and now, years later, is being sued personally on the DCA for $380,000. Work out what you propose to do and run it past your lawyer, making sure they actually read the DCA and the relevant sections in the Act because getting a DCA released is more tricky than it seems at first glance.
For further information, please contact Michael Cope or Ian Heathwood in our Brisbane office.
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Please see the attached request for a quote and my response by email where I clearly said, “Below is how I have priced the job” and then set out various prices based on costs plus. I got the job and there have been a number of extras. The builder now maintains it was a fixed price quote and all he is going to pay is my initial figure. How do I get around this?
It comes down to the words used in the documents. The builder has used very wide language which might be argued to include the extras you have identified. Further, your email does not clearly say that you are giving an estimate only. Nor is it totally clear that you offer to do the job on a cost plus basis. You need to get your paperwork right including being very specific as to whether something is a quote or an estimate and if its cost plus, make it absolutely clear. Remember, the clearer the contract the less chance of there being an expensive misunderstanding and, if you have a QBSA licence, the law requires you to have a written contract for any “building work” and that includes all the trades, except electrical. Proper, clear, written contracts are not just best practice but can save you thousands!!
For further information, please contact Michael Cope or Ian Heathwood in our Brisbane office.
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I am a plumbing contractor but I also did a small, four unit development, up at Woodgate with a mate of mine two years ago. We have not been able to sell any of the units and according to our accountant, we have to put the company, which we set up to do the deal, into liquidation. A friend of mine told me that if I do this I will lose my plumbing licence even though that company has nothing to do with my plumbing business. That cannot be right, can it?
I hate to tell you but under s56AC Queensland Building Services Authority Act, if you hold a BSA licence and you go bankrupt or the company which you are a director of goes down, you are deemed to be an “excluded individual”. That means you cannot hold a BSA licence unless you apply to the BSA to be a “permitted individual”. It does not matter that the company is totally unrelated to your plumbing business. I know that seems unfair but that is the law. You need urgently to take legal advice because this is very serious.
For further information, please contact Michael Cope in our Brisbane office.
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My wife and I operate a superannuation fund and plan to use it to buy a property from which to operate our contracting business. The change in rules last year which limited the amount we can put into our superfund, means we do not have enough money in our superfund to buy an appropriate property. I have heard that superannuation funds can now borrow money but I thought that was against the law?
It was. There is a way around it now but you have to be very careful how you do it. If you want to know how you do it, call Sean Diljore on (07) 3223 5909 or 0439 717 031 who can explain how it all works.
For further information, please contact Sean Diljore in our Brisbane office.
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I am 67 and have recently been diagnosed with cancer. Because of the treatment I can get, I am not about to die in the next few years but, I do not want to keep having the hassle of running my business. Everyone keeps telling me that a contracting business is not worth anything in terms of goodwill but I have a good, established and longstanding brand. How do I maximise the sale price?
As you know, we are only lawyers but what I can tell you is that you have already hit on one of the most important things. That is, the establishment of a strong brand which is not totally dependent and reliant on you personally. If the only reason people come to your business is because they know you personally then maybe there is not much value in the goodwill of your business. However, I know your business. I know that you have spent many years developing the brand, push the brand at every opportunity, have protected the brand through proper trademarking and got proper long term contracts with the companies you provide maintenance and service work for. So, there are very good reasons to believe you have real goodwill value. You put the right things in place years ago. What most small business operators do not realise is that they have to put things in place, like trademark protection of the business name, proper contracts with their major clients etc, in place now and this will have a long term impact on the value of their business when they choose to sell. You should be alright.
For further information, please contact Ian Heathwood in our Brisbane office.
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I have been operating my business for two years and have spent a large amount of money promoting my business name as a brand. I have now received a letter from a company in another state demanding that I cease using my business name because they claim to own a registered trade mark for the same name. My business name is registered with the Queensland Office of Fair Trading. Can I be stopped from using the name in Queensland?
Unfortunately the answer is probably “yes”. Provided that the trade mark has been properly registered and has continued to be used and re registered each ten years the owner of the trade mark is entitled to prohibit anyone else using the name in Australia. If the owner of the Trade Mark is willing you may be able to negotiate to purchase the Trade Mark or obtain a licence to use the name (probably for a fee) in Queensland.
When starting up a new business, just checking existing company and business names is not sufficient. It is important to remember that registering a business name or company does not give the business owner any proprietary rights to the name. It is wise to get an intellectual property law specialist to carry out searches to make sure the name is available and capable of being registered as a trade mark as well as a domain name in any jurisdiction in which you intend to trade.
For further information, please contact Harold Littler in our Brisbane office.
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Wish you invented the electrical power-board?
As related by IP Australia In 1972, Frank Bannigan, Managing Director of Kambrook, developed the electrical power-board. The product was hugely successful and was the basis for Kambrook’s growth to become a major producer of electrical appliances.
However, the power-board was not patented and Kambrook ended up sharing the market with many other manufacturers.
According to Mr Bannigan, “I’ve probably lost millions of dollars in royalties alone. Whenever I go into a department store and see the wide range of power-boards on offer, it always comes back to haunt me.”
Today Kambrook has a number of patents and pending applications for improvements in a range of consumer goods.
For further information regarding the protection of your bright ideas and inventions, please contact Harold Littler in our Brisbane office.
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We have been operating under our business name for 12 years and have spent a lot investing in development of the brand. As a result, our name and logo was well known in the industry and easily recognised. Now some bloke in Victoria claims he has the legal right to stop us using the name and is demanding that we immediately cease using our own business name, pay him $20,000 “damages”, enter into a licensing agreement with him and pay him $5,000 per year to allow us to continue using the name! This has got to be rubbish as we have a registered business name and a company incorporated using that name. What should we do?
Sounds like he has a registered trademark which you have infringed. If so, on the face of it, he may well have the rights he claims. Just because you have a registered business name or a company using a name, it does not mean you “own” that name. You should call Harold Littler, a trademark attorney and intellectual property lawyer at McKays.
For further information regarding Intellectual Property, please contact Harold Littler in our Brisbane office.
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Dad died recently and we are now selling his business. The accountant doing the valuation of the business refuses to give a value for goodwill which is ridiculous because the real value of the business is in the special drying process dad invented which is fundamentally what the business sells. The accountant says we do not have any legal intellectual property rights protection for the invention and process so anyone could copy it and therefore, its not worth anything. Is there anything we can do?
The accountant might be right but you still may be able to put the necessary intellectual property rights protection in place now. You need to consult a lawyer specialising in trademarks and intellectual property rights. There are only a handful of intellectual property lawyers who are trademark attorneys as well in Queensland. Call Harold Littler on (07) 3223 5912.
For further information regarding Intellectual Property, please contact Harold Littler in our Brisbane office.
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My brother died last year. Although he had been separated for ten years, he never actually got divorced. Nor did he change his Will. It says everything goes to his wife. Will it?
Yes, unless someone (like a de facto spouse) succeeds in challenging the will. This is because he did not actually get divorced, the Will stands. Anyone who is separated but not divorced should immediately do a new Will.
For further information regarding will matters, please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
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I sent a Payment Claim on a job where the builder was late paying. I delivered it to the foreman on the site. Now they are saying that the Payment Claim is invalid because giving it to the foreman didn’t count. Is that right?
Most likely. Giving it to the foreman on site will usually not be good service unless you have agreed with the builder that they would accept that. This is because usually the builder is a company and you can only serve the company by delivering or posting the document to its principal place of business or its registered office or by giving it to a director.
For further information regarding Payment Claims please contact Michael Cope in our Brisbane office or Stephen Byrne in our Mackay office.
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Is a verbal instruction to carry out a valid variation?
Read your Contract. It depends on what the Contract says. It probably says no variation is allowed unless the site instruction is in writing. However, in some situation you might be able to get around that. You had better get some legal advice.
For further information, please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
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Since I tendered for the job, the price of copper has gone up substantially. It was a fixed price Contract but another contractor reckons I can pass on this cost. Is he right?
Possibly. If the Contract contains a rise and fall clause you can. As is so often the case, you need to read the Contract and possibly get legal advice to know what the answer is.
For further information, please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
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The developer on a Gold Coast job has been placed into administration. Is this the same thing as going bankrupt?
No. Administration is a preliminary process whereby an administrator is appointed to takeover control of the company. The administrator determines whether there is any prospect of the company somehow successfully returning to trading. If not, it goes into liquidation and then but sometimes (very rarely) the company survives and resurfaces. In a liquidation, the company is a dead duck.
If you would like further information regarding Administration issues please contact Paul Agnew in our Brisbane office.
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I recently bought a contracting business. The seller still owns the building we operate from. We took over just two months ago and now as the landlord, the fellow we bought the business from is telling me I have to move. He promised me that he would give me a lease. How do I make him do it?
It might be possible to force him to grant you a lease but it is likely to be a very expensive exercise. Buying a business without a solid lease in place is asking for trouble. Legals are like medicine. It’s not nice to pay for them upfront but if you don’t, the result can be far worse!
If you would like further information regarding buying and selling businesses please contact Lyn Manias in our Brisbane office or Kelly Parker in our Mackay office.
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I have a Contract with a builder and it sets out a works program. His program with the principal sets out a different time table and now he reckons I have to follow that. I just do not have the men to get the work done that quickly. Is there an answer to my dilemma?
Again, it depends on the terms of your Contract. It might say the builder can alter the time table as they see fit. Or it might say that if there is a conflict between the two time tables, the builder’s time table in his Contract with the principal will prevail, in which case, you are stuck with it. You might however be able to claim a variation for acceleration of the works.
If you would like further information regarding building contracts please contact Michael Cope in our Brisbane office or Danielle Sanderson in our Mackay office.
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I’m selling my rental property and told the tenants that they have two weeks to get out. I have now been sent a nasty letter from them saying that I have to give them two months notice and they won’t be leaving until then. That can’t be right can it?
That depends on what type of tenancy agreement you have in place. New laws have recently come in which provide that the notice periods for ‘without ground’ terminations by the landlord are:
1. for periodic agreements - two months
2. for fixed term agreements - the later of two months or the end of the fixed term tenancy.
There are other things you need to know about these new laws if you are selling your rental property:
• you must have the tenant’s permission to conduct an onsite auction or open house;
• you must have the tenant’s permission to place pictures of the property online if those pictures contain items belonging to the tenants;
• if you currently have pictures of your rental property online which show some of your tenant’s belongings, you should remove the photos immediately and substitute them with new photos which do not show any of the tenant’s belongings.
If you would like further information regarding tenancy matters please contact Caitlin Heggie in our Brisbane office.
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The builder is trying to enforce liquidated damages on me but I had never signed the Contract. How can he enforce liquidated damages if I haven’t signed the contract?
Just because you did not sign the Contract does not mean that the terms of the Contract may not apply. If you were offered the job on the terms of the Contract (for example the contract was included in the tender documents) and you started work and have worked in accordance with it since, it is very unlikely that you can now go back and claim that the Contract does not apply. You need legal advice.
If you would like further information regarding building contracts please contact Michael Cope in our Brisbane office.
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I have been living with my partner for three years and we are about to buy an investment property together. Is there any way I can protect myself if things don’t work out?
Yes. Firstly you could do what is commonly (but incorrectly) called a “Prenuptial Agreement” and secondly, you could do a “Co-ownership Agreement”. These can both protect you if your relationship fails.
If you would like further information regarding de facto relationships please contact Lindy de Groot Gill in our Brisbane office.
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I got one of my office girls to collect the mail, driving her own car. She had an accident and smashed up the front of a shop. Now the shop owner is trying to sue me. Surely they can’t do that?
Sounds like your worker didn’t have third party property damage insurance on their car. Because she was an employee engaged on business for you, you will be liable for all loss suffered as a result of your worker’s negligence. Can I suggest you don’t let your employees drive their own cars because you can never know if insurance is in place or not.
If you would like further information regarding property damage insurance please contact Neil Goodwin in our Brisbane office.
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I heard under the new industrial relations laws even as a small business, we are going to have to pay the same redundancy pay that larger employers have to. Is that right?
No but there is a catch. Small businesses with less than 15 employees will not have to pay redundancy pay unless their employees are covered by a modern award which overrides the National Employment Standards. For example employers must make redundancy payments to onsite construction employees except for misconduct or refusal of duty. Small businesses are not exempt, however it will be capped at 8 weeks pay.
If you would like further information regarding redundancies please contact Doug Skelton in our Brisbane office or Cyndel Da Rin Perette from our Mackay office.
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Are Prenuptial Agreements enforceable?
Yes. But they have to be drafted very carefully. It is not something you can just do yourself so make sure you see an experienced family lawyer.
If you would like further information regarding Prenuptial Agreements please contact Lindy de Groot Gill in our Brisbane office or Cathy Kreig from our Mackay office.
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One of my guys left recently and now I find out he has taken away quite a few of my good customers who give us regular work. What can I do?
It depends on whether the employee had a contract of employment which prohibited him from stealing your customers. If so and it is drafted properly, you can prevent him from working for those people. If you don’t, there is basically nothing you can do. If you want to protect your business, make sure your employment contracts contain a restraint of trade.
If you would like further information regarding contracts of employment please contact Doug Skelton in our Brisbane office or Cyndel Da Rin Perette from our Mackay office.
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I heard that the new rules coming in for industrial relations mean that if you make an employee redundant, they can sue you for unfair dismissal. Surely that can’t be right?
From 1 July, 2009 an employee who is made redundant can claim for unfair dismissal if they can show that the employer could quite reasonably have redeployed them into another job in that business or a related one.
If you would like further information regarding redundancies please contact Doug Skelton in our Brisbane office or Cyndel Da Rin Perette from our Mackay office.
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I have a very good subcontractor who “dots all of his i’s and crosses his t’s”.
I recently cancelled a job on him and he sent me a bill for a cancellation fee. Can he do that?
If you have a written contract with him, check it says Ian Heathwood. If it has a clause allowing him to do that, yes he can. Why don’t you get your contracts drafted and put a similar clause in?
If you would like further information regarding contracts and their inclusions please contact Ian Heathwood in our Brisbane office.
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The developer on a Gold Coast job has been placed into administration. Is this the same thing as going bankrupt?
No. Administration is a preliminary process whereby an administrator is appointed to takeover control of the company suggests Paul Agnew of McKays Solicitors. The administrator determines whether there is any prospect of the company somehow successfully returning to trading. If not, it goes into liquidation. Sometimes (very rarely) the company doesn’t go into liquidation and survives. In a liquidation, the company is a dead duck.
If you would like further information regarding liquidation and administration please contact Paul Agnew in our Brisbane office.
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I was badly behind in my payments with my supplier and they have just come and taken away the stuff I have bought from them despite my protests. They reckon their entitled to do that. Isn’t that stealing?
Probably not. Almost certainly the agreement you signed with your supplier will have a retention of title clause suggests Michael Cope of McKays Solicitors. This entitles your supplier to take back the goods if you have not paid for them and that usually includes even if they are onsite. You should have a retention of title clause in your contracts with your customers too, so that if they don’t pay, you have at least got a chance of getting your materials back.
If you would like further information regarding contracts and their inclusions please contact Michael Cope in our Brisbane office.
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One of our major clients, a builder, has just gone broke owing me about $175,000.00. The liquidator tells me there is no prospect of getting much out of the builder. I cannot meet my wages bill let alone the redundancy payments I have to make and the mortgage on my house is fully drawn. What should I do?
If it is as bad as you say, you need to urgently get advice from your accountant to establish whether the business is insolvent warns Paul Agnew. If it is, you will almost certainly have to put the business into administration. If you do not, you as a director, will become personally liable for the debts of the company. If that happens, you could well lose everything you own, including your house. Act immediately!
If you would like further information regarding liquidation and administration please contact Paul Agnew in our Brisbane office.
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Builders seem always to pay late. Can I claim interest for late payment?
According to Michael Cope of McKays Solicitors, there are a couple of bases for claiming interest. Firstly, your contract may provide you are entitled to interest on late payments. If so, and you are not paid on time, you can claim the interest in the next progress claim (or Payment Claim under Building and Construction Industry Payment Act if you are making one). Secondly, even if your contract does not give you the right to interest on late payments, if your work is governed by the BSA (electricians are not) you can use section 67P of the QBSA Act to claim penalty interest at a rate which is currently over 13%. Finally, even without all that, if you get a judgment against someone, you can get interest then too at 10%.
If you would like further information regarding contracts and payment terms please contact Michael Cope in our Brisbane office.
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I heard another contractor was going into receivership. What is the difference between that and being wound-up?
Receivership means that a secured creditor, such as a Bank holding a charge or mortgage, has taken possession of the company and its assets for the purpose of liquidating the assets to pay themselves. It does not legally prevent the company paying other creditors. When a company is wound-up, the liquidator has a responsibility to pay out all creditors. Paul Agnew of McKays Solicitors warns that if you are dealing with a receiver or liquidator who is claiming monies you need to establish if they have the right to lawfully claim such monies from you. Paying to the wrong party can be a costly mistake.
If you would like further information regarding receiverships please contact Paul Agnew in our Brisbane office.
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We cannot pay our debts and are going to have to go into voluntary administration. My accountant said that I should consider a “CVL” as an alternative. What does he mean?
A CVL stands for “Creditors’ Voluntary Liquidation”. Sometimes it is better to put the company straight into liquidation rather than go into voluntary administration first. It can be cheaper and quicker. However, if you have given a lot of personal guarantees, it may well be best to go into voluntary administration. Each case is different and you need expert advice from your lawyer and an insolvency practitioner. Whatever you do, do not do nothing or it is likely to cost you big time. Remember, any debts the company incurs whilst it is insolvent become debts of the directors (including shadow directors – people who are not directors by title but act as directors).
If you would like further information regarding liquidations, administrations or insolvency issues please contact Paul Agnew in our Brisbane office or Danielle Sanderson in our Mackay office.
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I received a letter from our Bank saying they want to appoint a consultant to conduct a “strategic review” of our operations. What should I do?
This is a heavy hint that your Bank thinks you may not be a good customer and might be looking at getting rid of you. You will have to pay the costs of the consultant which is likely to be very expensive and very distracting. If you act quickly, you might be able to buy some time from the Bank and see if you can refinance which may well be a cheaper option. It also might be a sign that you are having cashflow problems in which event you probably need to see your lawyers about chasing up your debtors. Do that anyway!
If you would like further information regarding debt collection please contact Neil Goodwin in our Brisbane office or Danielle Sanderson in our Mackay office.
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The builder was not paying me so I stopped work. The builder’s lawyers have written to me telling me I have “repudiated” the contract and that the builder is going to sue me for any loss he suffers. What does he mean?
Repudiation of a contract is the wrongful refusal to do what you have contracted to do. Usually you have no right to stop work if you are not paid. The main exception to this is if you have met the requirements of the Building and Construction Industry Payments Act. If you have stopped work when you are not entitled to the builder is entitled to terminate the contract. If that is so, he will be able to engage another contractor and sue you for any additional costs. Get urgent legal advice.
If you would like further information please contact Michael Cope or Neil Goodwin in our Brisbane office.
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I owe one of our suppliers a substantial sum and they are threatening to wind me up. The reason I haven’t paid is because I have a big job where I am owed $89,000.00. What can I do to stop them winding me up?
If you have received any winding up papers contact your lawyer urgently as strict time limits apply. If all you have is a letter of demand you should concentrate on the builder because if you had the money from the builder you would be able to pay your supplier. If you have not done a Payment Claim under the Building and Construction Industry Payments Act yet, do it straight away. If they do not pay you within ten business days or give you a Payment Schedule, you will be able to force them to pay you the full amount and hopefully, within time to get the money onto your supplier. Also, keep your supplier fully informed about what you are doing so they know you are serious about chasing the money.
If you would like further information please contact Michael Cope or Neil Goodwin in our Brisbane office.
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I am in dispute with a developer and we are going through a dispute resolution process. It’s adjourned but the mediator said that next time we’d both better be “bona fide”. I don’t know what he meant so I’m lost as to what I should do. What does he mean?
The dispute resolution process will require the parties to participate on a “bona fide basis”. That means, to act in good faith, honestly, without fraud, collusion or wrongdoing. In common parlance what the mediator is saying is that neither you or the developer are being “fair dinkum” in trying to resolve the dispute i.e. bona fide means fair dinkum.
If you would like further information please contact Michael Cope in our Brisbane office.
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I know what liquidated damages are but what are unliquidated damages?
Liquidated damages means a specified sum which a party has to pay if certain things happen or do not happen, for example, within a certain time. Unliquidated damages are damages the extent of which in monetary terms is not pre-set and which has to be assessed by a judge or jury. Most people just talk about “damages” as distinct to liquidated damages when they mean the amount of a claim which is not pre-ascertained.
If you would like further information regarding unliquidated damages please contact Paul Agnew in our Brisbane office.
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I am doing a job for a builder which is a lump sum job. He is insisting that I do this extra work which I do not think is included. He says it is necessary for the job to be finished and he is probably right but it was never mentioned in the quote. Can I rightly refuse to do it?
Just because it is not specifically mentioned in the quote does not mean you do not have to do it. If the quote specifically excludes the work in issue, you would not have to do it. However a one off quote usually amounts to a contract for a lump sum and carries with it the requirement that you must carry out all works which are necessarily incidental to enable completion, even if those works are not specifically referred to in the subcontract documents or the quote.
If you would like further information please contact Michael Cope in our Brisbane office or Dannielle Sanderson from our Mackay office.
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I put in a claim for a variation and the superintendent has responded saying that I am “estopped” from pursuing the claim. What on earth does he mean?
Estoppel is a doctrine of law to the effect that where you have represented something to be the case, knowing that the other person is going to rely on what you say and they act on it to their cost, you cannot subsequently act inconsistently with the representation. I suspect the builder says you promised him you would do something and that he has relied on that for example, in giving you and not the other contractor, the job. Ask him to provide more details of why he says you are estopped and send it to us.
If you would like further information please contact Michael Cope in our Brisbane office or Dannielle Sanderson from our Mackay office.
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Does my contract need to be in writing?
Some types of construction contracts are required by legislation to be in writing, others are not. But, even then it is advisable to “get it in writing” to ensure both parties understand their rights and obligations. A written contract can avoid a “he said, she said” dispute and save unnecessary costs with litigation.
If you would like further information or assistance in preparing your contract please contact Michael Cope or Neil Goodwin in our Brisbane office.
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I hate telemarketing calls and so we put our home number on the “Do Not Call Register”. Despite that, I am still getting called. What can I do about this?
You are not the only ones. The Australian Communications and Media Authority have received 30,000 complaints since the “Do Not Call Register” came in, just like yours. Whilst that does not sound too good, they are in fact prosecuting some of these telemarketers at the moment. Make a complaint to the ACMA by calling them on 1300 792 958.
If you would like further information please contact Michael Cope in our Brisbane office.
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My husband and I are doing new Wills. We have chosen the people we want to run our estate when we die. Do we need to ask them permission before we put them in the Will as executors and do we need to tell them what we are putting in the Will?
No. You should however ask them if they are happy to be your executor because if you put them in and they don’t want to do it, it could end up costing your estate quite a lot. Once you have signed the Will, it is very important that you tell them that they are the executors but you do not have to show them a copy of the Will or tell them who gets what under it.
If you would like further information please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
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With our help our daughter bought her first home. Her boyfriend has now moved in and is helping with the payments. We are worried the relationship is not going to last. Is there anything we can do to protect our daughter (and our investment!)?
You have every reason to be worried. If they stay together for two (2) years or more (and in limited circumstances a lesser period than that) he will acquire very similar rights for a property settlement as someone who has been married. Even if they do not stay together for long and don’t get married, it is almost certainly still going to be messy and expensive for your daughter and possibly yourselves. At the bare minimum there should be a Cohabitation Agreement which deals with property in her sole name and any joint property your daughter and her boyfriend acquire in the event of a breakup, death, bankruptcy etc. Your daughter should also include in that Cohabitation Agreement clauses protecting her entire financial rights.
If you would like further information please contact Lindy de Groot Gill in our Brisbane office.
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I recently fitted a replacement hot water cylinder for a customer in a rental property he owns. The customer signed my quotation which includes a clause saying that he does not own the materials until he pays for them. There were no problems with the job. The tenant was happy but the guy just will not pay! As title in the goods is mine, I would like to rip the cylinder out but I have a feeling you’re going to tell me I can’t do that. What’s the go?
Unfortunately you are right. You probably can’t remove the hot water cylinder. Once you have fixed it in place, it becomes part of the land but to remove it would be theft. To tell you whether it has become part of the land I would need to know how it has been installed. It makes a difference whether it is sitting on the ground or is fixed in place and if it is fixed, how it is fixed. If it is a fixture you can only take the guy through the courts. A guide on how to do this can be found on the legal section of trade associations which have a relationship with McKays Solicitors.
If you would like further information please contact Michael Cope in our Brisbane office or Dannielle Sanderson from our Mackay office.
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A customer and I recently exchanged a series of emails about a new job including a suggested price. Now the customer is saying I am bound to do the job for that price even though we never signed a contract. Can he force me to go ahead at that price? It’s actually too low!
Be careful with emails. It is possible that one of the emails or the chain of emails together, constitutes a contract. If the emails contain an offer and acceptance and that has been communicated to the person who made the offer, a valid contract has been formed… even though no signatures have been exchanged and there is no formal contract. If all you want to do is to negotiate the issues leading up to entering into a formal written contract, make sure your emails make this clear!
If you would like further information please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
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How come when my mate had his and his wife’s Wills done it cost them something like $500.00 when the lawyer I asked, said he expected it would cost about $3,000 plus?
No doubt your mate had what we in the legal industry call “simple mum and dad Wills”. The other lawyer was no doubt talking about more complex Wills incorporating trusts. This can be expensive but could save your family tens of thousands of dollars tax and avoid, among other things, the risks of your children losing their inheritance in a divorce or through some other financial disaster.
If you would like further information please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
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I heard one of the partners at McKays Solicitors saying that Do it yourself Will Kits are not worth the paper they are written on. Why?
If you want a good example of a family being torn apart and wasting hundreds of thousands of dollars on legal fees because someone died having tried to use a Will kit, you should have a look at the case regarding Peter Brock, the late racing car legend. His family has been in and out of court since he died and as we understand it, it’s about to go to court for another round. “Yahoo!” for the lawyers, but pretty sad for the family.
If you would like further information please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
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My thirty year old son is about to get married and my wife and I are worried that it is not going to last. He really should have a prenuptial agreement but where do we even start raising this with him?
Rest assured, you really would be doing the right thing by raising it with him. An easy and helpful way of doing this would be to give him a copy of McKays Solicitor’s information brochure about the legal things people should be dealing with when they are going to get married or are entering into a de facto relationship. It deals with a number of issues but also covers “prenuptial agreements”. It is called “Essential legal tips for couples and couples-to-be”. Call Ainsley Minnikin in McKays’ Brisbane office if you would like a copy (or if you have one more than one child two or three copies!).
If you would like further information about "prenuptial agreements" please contact Lindy de Groot Gill in our Brisbane office or Nicole Cullen from our Mackay office.
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I’ve got a number of jobs, which have been affected by the recent floods. All those jobs are held up. What should I do to protect myself?
You need to check the contract urgently. You probably have a right to claim for an extension of time. If so, do so immediately and follow the contract provisions closely. You might also have some other rights to suspend work or even terminate the contract. Act quickly.
If you would like further information or assistance in preparing your contract please contact Michael Cope or Neil Goodwin in our Brisbane office.
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I’m 55 and think its time to sell my business, while the going is good. I have a potential purchaser, where do I start?
First thing is to talk to a suitable accountant, about what the business may be worth. There can be substantial advantages is using a good business broker, but you have to be careful who you choose. Lawyers and accountants deal with business brokers all the time, so they can help you choose one who will provide the level of assistance and ongoing support necessary to locate a buyer and justify the commission to be charged.
If you would like further information please contact Ian Heathwood or Lynn Manias in our Brisbane office.
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Some years ago I bought a house with a downstairs office so we could run our business from home. I wanted to claim some of the expenses relating to using the property as an office (including interest on the loan) so I bought the property in the name of our family trust. We are now looking at selling the house. My brother tells me I am going to be up for massive capital gains tax because the property is worth so much more now. Is that right?
Unfortunately your brother is most likely right. Had you bought the property in your own names and lived there, you would have been entitled to the exemption from capital gains tax for a property used as your principal place of residence. Also, you may still have been entitled to claim most of the CGT exemption for a home and claim some tax deductions for the property’s use as a business premises. Next time, make sure you talk to your accountant and lawyer before you decide what name you are going to buy a property in.
If you would like further information please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
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A friend of mine has a small business which they operate through a company. It looks like they are going to have to close the doors. Both of them are directors of the company. The house is in the wife’s name but the accountant still reckons they are going to lose their home. The wife doesn’t even work in the business – so how can this happen?
If the wife is a director of the company and the company has traded while it is unable to pay its debts, it is likely that she will be in as much trouble as her husband. That’s why it is usually a good idea to make sure there is only one director of a company which runs a small business. At least that way, the wife’s personal assets would not be at risk to claims for insolvent trading.
If you would like further information please contact Ian Heathwood in our Brisbane office or Andrew Coates in our Mackay office.
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