News

You have a Judgment Debt in your favour – now what?

If you have obtained a judgment from a Court or Tribunal in your favour with respect to a debt owed to you, you are known as a judgment creditor. The person or business who owes the debt is known as the judgment debtor. Even if a judgment is obtained, a judgment debtor may continue to fail to pay the debt owed to you. If that is the case, there are a number of procedures which you can take to enforce...

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Insolvency and the right to terminate contracts

Reforms to insolvency laws which commenced on 1 July 2018 prevent contracting parties from relying on certain termination clauses in commercial contracts. The reforms aim to give companies facing financial difficulties an opportunity to trade their way out of their predicament rather than having a contract unilaterally terminated. Generally, contracting parties can no longer rely on an ipso facto termination clause to end a contract in certain circumstances pertaining to the other party’s financial position. Companies should be aware of...

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Varying the terms of a Will after death

In Australia, a person is ‘technically’ free to choose who should benefit from his or her estate. Testamentary freedom is a well-founded principle. This principle however may be subject to community expectations of moral obligations. Consequently, in some circumstances a Court may order that the terms of a Will be varied to satisfy a claim by an eligible person. These claims are commonly known as family provision claims. Alternatively, there may be a mutual agreement between the beneficiaries of an...

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Settling Legal Disputes – Calderbank Letters and Offers of Compromise

Costs in legal disputes can quickly escalate. There is benefit in all parties seeking to compromise their differences, rather than agitate their dispute through the Court system. The Courts recognise a number of initiatives which promote early settlement of claims. In this article, we consider the use of Calderbank settlement offers, settlement offers made under the rules of the Court and how the use of these instruments can provide costs protection in litigation. Costs – the general principles There is...

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Traps for so called ‘Sophisticated Investors’

The Australian Securities and Investments Commission (ASIC) takes a firm stance against those who manipulate ‘sophisticated investor’ exemptions for retail investors interested in acquiring securities in a corporate body. Generally, when companies raise funds by offering shares to the public, they must make available to prospective investors certain disclosure documentation prescribed by the Corporations Act 2001 (Cth) (the ‘Act’). The type and extent of disclosure depends on the circumstances and may include a full or short-form prospectus, profile statements and...

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De facto relationships and Will contests

All jurisdictions in Australia provide statutory rights for eligible persons to contest a Will if they can show that they have been left without adequate provision by the testator. In Western Australia, an eligible person includes: a spouse or de facto partner; a person receiving or entitled to receive maintenance from the deceased as a former spouse or de facto partner; a child of the deceased; a grandchild of the deceased, in specified circumstances; a stepchild of the deceased, in...

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The role of an expert witness in a commercial dispute

Engaging an expert witness for your commercial dispute can be critical to ensure the success of your legal case. It is important to understand the role of an expert witness in a commercial dispute in Western Australia so you can get the best value out of their services. An expert witness is a person who is engaged on your behalf to prepare a report which sets out their expert opinion on a subject matter of their speciality. An expert witness...

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Removing a nominee director

When forming a company, certain documents are prepared which will be pivotal to its existence. The replaceable rules contained in the Corporations Act 2001 (Cth) may be adopted or a constitution specially prepared to govern the operations of the company A shareholders agreement may also be used which creates a private contract between the shareholders of the company and sets out their respective rights and responsibilities. The importance of consistency between these documents, and understanding the interplay of the Corporations...

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Why you should have a corporate trustee for your Self-Managed Superannuation Fund

A Self-Managed Superannuation Fund (SMSF) is a type of superannuation structure that allows members to control and manage their own funds. Unlike other superannuation funds, members have autonomy over the choice of investments they can make, subject to the relevant superannuation laws A SMSF must comply with the requirements of the Superannuation Industry (Supervision) Act 1993 (Cth) and relevant tax laws. Compliance is necessary to take advantage of available income and capital gains tax concessions which have been implemented by...

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What to do if you can’t find your trust deeds

Losing a trust deed is not something anyone plans to do. Not only is a lost trust deed inconvenient it can also have serious consequences. Even though it may be possible for the trust to continue operating, without having the trust deed, it may be very difficult, if not impossible, for trustees to be certain that they are administering the trust in accordance with the terms of the trust deed. When a trust deed goes missing there is always a...

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