Everything you wanted to know (or didn't) about legal services

A deed is a specific type of binding promise or commitment to do something.

It seems to be the inherent nature of every legal system to adhere to a particular ritual, act or instrument by which a person can notify the community that she or he most solemnly swears to commit to something by way of a binding document.

This idea of solemn commitment continues and today a deed is a special type of contract or binding commitment or obligation and is regarded as the most solemn act that a person may perform which:

  • passes an interest, right or property;
  • creates an obligation binding on some person;
  • or amounts to an affirmation or confirmation of something which passes an interest, right or property.

Lang Hemming & Hall delivers law for life, and as deeds will at some point be a requirement in all our lives, it pays to have a team of lawyers on your side who have the experience to guide you through that process in your life.

“Pre-Nup” and Binding Financial Agreements

While the actual decision to get married does not by itself require any legal guidance, the act of getting married can affect both you and your intended spouse in many different ways.  Obviously, it is everyone’s hope that a marriage is going to last forever, and it is best to arrange your affairs in anticipation accordingly.

However, for some people, it is desirable to try and maintain more certainty over the ownership of assets.  This is often the case if this is not your first marriage.  For example, some people wish to maintain certain assets for children of a former marriage.

A Pre-Nuptial agreement (or Binding Financial Agreement) as most of us would understand that term, is, in many cases, not a legally binding agreement for married couples throughout Australia.  Pre-nuptial agreements can be binding upon de-facto couples in certain states.

The law of Pre-Nuptial Agreements is not necessarily as “black and white” as you may believe.

Pre-Nuptial Agreements can be used as evidence of the parties’ intentions at the commencement of their marriage and there are various other mechanisms such as Trusts which can be used to try and achieve the same results as the American style agreements.

We are well placed to advise you on these issues and would encourage anyone considering a Pre-Nuptial or Binding Financial Agreement to contact us to discuss their individual circumstances.

Pre Marriage Checklist

  • Notify Telstra, Optus etc
  • Revise Wills, Powers of Attorney, etc
  • If Moving – Mail Redirection
  • Change Name at Bank
  • Change Drivers Licence Address
  • Obtain Passport for Honeymoon if Needed
  • Advise your Solicitor, Accountant, Doctor, etc
  • Review all Life Insurance and Health Insurance
  • Insurance of Ring
  • Transfer of Property at Titles Office
  • Change Club Memberships
  • Notify Social Security if applicable
  • Change Registration on Cars etc
  • Leases etc. may need to be changed
Restraints of trade

In legal terms, restraint of trade refers to terminology within a contract which seeks to restrict the freedom of a party to engage in business. This often comes into play in the form of employment agreements which may contain restraints, such as a prohibition from engaging in other paid work during the term of employment or directly competing with the employer once the employment has ended. Other examples of restraint of trade clauses might be in a sale of business agreement which may often restrains a vendor from competing with the business being sold. Partnerships, joint ventures, and franchises also may use restraints on future and concurrent competition.

The underlying purpose in using these restraints is to protect one’s business from competition from those who might be well placed and have gained special skills, contacts, and knowledge to complete effectively, such as partners and ex-employees.

Legally to be enforceable, restraints of trade must be proven to be ‘reasonable’ by the party that wishes to impose the restraints on others. To be held up as reasonable, a restraints must itself be limited as to time, location, and extent, and must not go beyond protecting your legitimate business interests. Any restraint that is too detrimental to another party (i.e. does not allow them to make a fair living) will surely be struck down. Because this is such a complex legal slope to determine what is ‘reasonable’, your best recourse is consult with a solicitor in these matters.

Likewise, if you are entering into an agreement with a restraint of trade, you’ll want to be sure you understand what will be expected of you under the restraints and the consequences should you breach the contract.

Due Diligence Investigations

While often used colloquially in everyday language as a synonym for ‘appropriate attention to detail’, the legal definition of due diligence refers to an investigation of a business or person prior to entering into any contractual obligations. Due diligence does indeed focus on discovering all pertinent details and is typically performed in cases of purchasing an existing business or a commercial real estate property. The onus is on the buyer to do the research prior to entering any arrangement, especially in regards to any liabilities that may be uncovered as well as the physical, legal, and financial condition of the company or property being considered for purchase. Any information that is provided to you from the other party should always be verified to protect your own interests.

The main areas researched in a due diligence investigation are:

  • Incorporation – You’ll want to verify that a company is properly incorporated with ASIC and examine its share structure, board members, and financial reports.
  • Contracts This includes sales contracts, distribution contracts, and any sub-contracts; whether they are valid and what they entail, their duration, and if they can be terminated.
  • Employees You’ll want to investigate the management team of a target company including how long they have held their positions and how their performance has been. Other items to review are employment contracts of staff and compliance with occupational health and safety standards.
  • Finances A company’s financial situation will be uncovered by accountants. From a legal perspective, you’re looking for red flags such as trading while insolvent or in any other way breaching its obligations under the Corporations Act 2001. It’s also recommended to thoroughly review the company’s debts and liablities and when they become payable.
  • Real Property Here you’re looking to see that the company owns all its property or has correctly leased it. This includes a title search as well as any mortgaes, equitable claims, or charges that may exist against the property.
  • Intellectual Property – You’ll want to check that a company has in fact registered its intellectual property, both for its value in the contract negotiations as well as for any potential infringement issues should it not be registered.
  • Litigation Much can be learned about a company from what litigation its been involved in, especially if there has been past prosecutions and fines from government agencies.
  • Operations – Operations refers to the structure of a company, its internal logistics, major suppliers, and any outsourcing. It’s also a good idea to compare the company to competitors within the industry.
  • Taxation – Check both that a company has paid tax, but also that it has been paying the correct amount of tax.
  • Insurance  You’ll want to check that a company is insured and also not underinsured, as well as if there have been any recent claims and if consistent claiming may result in a future increase in premiums.
  • Environmental Issues / Building and Site Review  This is an investigation into a company’s compliance with environmental law and local zoning and planning regulations, as well as an evaluation of existing building structures within a site as to their condition and upcoming maintainence needs.
Intellectual Property

Intellectual property (IP) legally refers to ‘creations of the mind’ for which exclusive rights may be recognised. Examples of IP include inventions, unique imagery, phrasing, and product attributes, unique product design, copyrighted forms of artistic expression (photos, paintings, drawings, poems, novels, musical compositions and arrangements, film, broadcasts, computer programs), trade secrets, as well as plant breeders’ rights to new varieties and circuit layouts.

Options to protect your intellectual property include patents, registration of trade marks, and confidentiality agreements in relation to trade secrets:

  • Patent – is used for a device, substance, method, or process that is entirely new or a new way of using components in a whole and gives you the right to stop others from selling or using your invention. A patent provides a high level of legal protection, but requires you to supply details of your invention, which you may not wish to disclose. In those cases, a trade secret/confidentiality agreement which swears those with specific knowledge to secrecy may serve you better.
  • Trademark –  is a letter, number, word, phrase, sound, smell, shape, logo, picture, or aspect of packaging that distinguishes your products from those of other traders. While it’s not required to register a trade mark, doing so will allow you to take legal action against those who would use your trade mark without permission. Likewise, a registered design can be used to protect the way your manufactured product looks, giving you the exclusive right to a particular product design in your market.
  • Design Registration – is intended to protect designs which have an industrial or commercial use.  A registered design gives you the owner, exclusive rights to commercially use it, licence or sell it.
  • Business/Trading name – is the name under which your business operates. Registration identifies the owners of the business. Registration is compulsory in every state and territory from which a business operates, and must be completed before the business starts trading.

A first step in protecting your intellectual assets is by identifying what legally constitutes intellectual property. IP Australia (a Commonwealth Government Department) provides a full lists of definitions to assist in sorting out what falls under IP and what legal avenues may be used to your advantage.

Another important task is to search existing databases to ensure your ideas are indeed original and you are not infringing on the rights of others. A solicitor who specialises in IP affairs can assist in establishing protections as well as instances of IP infringement against your interests.

Contact Q Solicitors for professional advice on how best to manage your Intellectual Property requirements.

General Litigation

General litigation encompass those aspects of law that may potentially be litigious in nature (those that may result in a lawsuit), including but not limited to wills and estate planning, incorporation of business, real-estate transactions, drafting of contracts, and disputes with administrative bodies. Litigation may occur when a dispute cannot otherwise be resolved and a controversy transfers to a court setting.

Disputes may occur between individuals, groups, organisations, associations, government agencies, and/or business entities and encompass matters such as economic restitution, compensation in the case of an injured party, deterrence from future actions, or retribution for a wrongdoing. Commercial disputes may be about issues such as contractual disputes, debt recovery, and claims made against non-paying insurers and deceased estates. When a dispute cannot be resolved privately between the two parties, a Plaintiff may file a Complaint to have the courts intervene in the matter.

Whether you need to file a Complaint or defend against one, when going into the litigation process, the three important questions in your mind should be:

  • How much am I seeking to recover?
  • What will it cost me?
  • What are my realistic chances of success?

It is important in a general litigation to always keep your ultimate goal(s) in mind and not see it as a situation of winning or losing. Rather, the goal of litigation is to ensure one’s rights are honoured in accordance with the law.


Franchising is a business model in which a firm (the ‘Franchisor’) allows business operators (Franchisees) to leverage off their good will and intellectual property.  This can include such things as the use of the Franchisor’s Trademarks; Business Intelligence; Designs; Administrative Methods and maybe even production models of “secret recipes of herbs and spices”.  It can be as simple as the savings in joint buying power and advertising campaigns and distribution lines to assistance in selection and fit out of premises.

Some franchise models include “Key Money” or Goodwill payments, some include training for prospective staff and nearly all of them include payments of Royalties or commissions for the ongoing use of the systems.

A franchise may be considered a temporary business investment akin to renting or leasing a model to make money.

Franchises are normally governed by any or all of three main factors:

  • Time
  • Geography
  • Product

They are also governed by the use of Franchisors’ signage, logos, trademarks and sometimes even uniforms Essentially the Franchisee is required to follow a uniform business concept strategy as set forth by the Franchisors.

Franchising is defined and regulated under the “Franchising Code of Conduct”.  This is a mandatory Code of Conduct created under the Trade Practices Act legislation.

It is fair to say that the phrase “Franchise” is commonly misused and business processes that are describe loosely as franchises are sometimes not and likewise processes that are thought not to be covered quite often are.  The difference is phenomenal especially from an administration and disclosure point of view.

Purchasing a franchise (and likewise, choosing a Franchisee) needs to be a carefully considered process. A legally binding franchise agreement needs to be provided (with mandatory inclusions on various subject matters) laying out all rights and responsibilities for both parties including fees, start-up costs, training, and territories of other franchisees.

In general, franchise contracts favour the Franchisors who will often have non-negotiable clauses to require Franchisees to accept the inherent risk of the venture without any guarantee of success or profits.

The advantages are of course that someone else has done all the hard work of the Business planning set up and administrative structuring leaving you alone (hopefully) to make the money and enjoy the success.

The risks can be high and contract terms can be restrictive and as such we strongly encourage you to consult with our team at Q. We have been dealing with franchises for both franchisees and franchisors for decades.


Buying a property is the biggest and most important investment decision you are likely to make in your life. If you fail to do your research, or if you receive bad advice, buying a property may also be one of the most costly decisions of your life.

The process for buying property can be broken into the following:
Pre exchange -> Exchange -> Post-Exchange -> Settlement

We can help take some of the stress out of this important process by working with you to ensure the completion of every step – NOTHING is left to chance.

Failing to do your homework when selling a property can result in an unfavourable outcome, with significant costs and legal ramifications.

At Q Socilitros, we are experienced in all areas of conveyancing law.  We will take the legal stress out of selling your property by ensuring we fully understand you and your goals; and by delivering reliable, easy-to-understand advice.

The conveyancing process will generally go like this:

  1. Appoint a Conveyancing Solicitor to draft your Contract of Sale – Legislation prohibits a vendor or their agent to market a residential property for sale without a complete contract.
  2. Engage a Real Estate Agent – Be sure to choose an Agent with whom you feel comfortable.
  3. Negotiate the Sale – There may be any number of challenges and requests to be negotiated with your potential buyer.
  4. Exchanging of Contracts – Once both parties agree on the contract inclusions, copies are exchanged and signed, and the contract becomes legally binding.
  5. Cooling Off period  This 5 (business) day period commences after the exchange of contracts, and allows the buyer to organise finance and inspection reports.
  6. Settlement period – This period can vary.  During this time we will conduct searches and liaise with all parties and banks to arrange settlement.
  7. Settlement – Or “completion”, is when ownership is officially transferred to the purchaser via the exchanging of cheques and Title documents between the parties and their banks.
Family Law & De Facto Law

As its name implies, family law is the area of the law concerned with family and domestic matters relating to property, finances, and care of children including:

  • Marriage, civil unions, and domestic partnerships including de facto situations
  • Adoption and Surrogacy
  • Child abuse, neglect, and child abduction
  • Divorce and Annulment
  • Alimony and Property Settlements
  • Child Custody, Guardianship, Visitation, and Child Support
  • Juvenile adjudication
  • Paternity Testing and Paternity Fraud
  • Termination of Parental Rights
  • Restraining orders

Only about 5% of divorces and separations end up in court, with the remainder having a mutually agreeable settlement between both parties negotiated through solicitors. While courts do their best to be fair to all concerned, rarely is everyone happy with the result of a court decision. Resolving family related issues through solicitors is always preferable to having the court decide these matters.

Insolvency and Bankruptcy

If a time comes when a business or an individual cannot pay all their debts when those debts become due, they are then classified as insolvent. An individual may also be declared as bankrupt in regards to their personal finances if they cannot control their debts. Insolvency occurs when the amount of money coming in to one’s accounts is less than the amount of money needed to be paid out for bills and expenses. Examples of accrued debts may include credit cards, overdraft, unpaid salaries, invoices, overdue rent or mortgage, tax owed, and unpaid bills. If you do not have a way to pay your debts and are unable to reach an agreement with your creditors, you may be in a position of impending insolvency.

An individual with considerable financial hardship may declare themselves bankrupt through a Debtor’s Petition with ITSA. Creditors who are owed money may make a Court application to make someone bankrupt. Once an individual becomes bankrupt, a Trustee will manage their property and assets with the goal to sell any assets that have sale value and use the proceeds from the sale of assets to pay the creditors as much of the money owed as possible. Once you have declared bankruptcy, you may not be allowed to travel overseas or become employed in certain professions. Bankruptcy may be able to be discharged after three years, yet it remains on the record for seven years. If all debts are able to be paid in full, the Trustee can opt to annul the bankruptcy. Alternatives to declaring bankruptcy include financial counselling, debt agreements, and a controlling trustee/personal insolvency agreement.

In the case of in insolvent business, it is an offence if the directors continue to operate and incur further debt when a company is in an insolvent state. Options for a business facing potential insolvency include liquidation (winding up), Voluntary Administration/Deed of Company Arrangement, and Receivership. In liquidation, a Liquidator is appointed to wind the company up; selling its assets to pay outstanding debts. The company then is de registered and will not longer exist. This is most often seen in court liquidation and creditors’ voluntary liquidation. In voluntary administration, an administrator investigates the company’s history and financial position to make a recommendation in regards to its future. Creditors then must make a decision to accept a Deed of Company Arrangement as proposed by the directors which would permit the company to make a binding compromise on all creditors, to liquidate, or to return the company into the control of the directors. Receivership involves a receiver/manager for the company assets as appointed by a secured creditor or the court who takes charge of the allocation of the assets to the creditors. This may occur concurrently with liquidation or Voluntary Administration.

Strata Title

Strata Title refers to a type of property ownership as set out for an individual lot within a multi-level apartment block or horizontal subdivision which also includes a share of the development‘s common property areas. Strata Title Schemes are then composed of all individual lots as well as the shared areas in which the individual lots all own an interest. Lots are defined by the physical boundaries of their structures and each have their own Title and Lot Owner.

Strata developments can be residential, commercial, retail, mixed use developments, serviced apartments, retirement villages, caravan parks, and resorts. Common property includes everything on the parcel of land that isn’t within the individual lots such as stairwells, elevators, foyers, driveways and carparks, roofs, and gardens.

A legal entity is created for a Strata development of a owners corporation (body corporate) to manage the common spaces as well as design and enforce by-laws for the tenants. A developer transfers the individual lots to the first purchasers, but the common property to the body corporate. Tenants within the scheme each own an interest within the body corporate and can vote upon how the common property is administered in trust.

Important considerations when buying into a strata scheme:

  • The nature of the by-laws for the scheme
  • What dues are paid into the body corporate
  • How the community property is administered

As with any contract, you will be legally bound by your signature, so it is highly important to perform due diligence and know what issues may be at hand.

Real Estate Acquisition and Disposal

Real Estate is defined as a parcel of land as well as anything permanently fixed to it, namely buildings and other physical structures, as well as its natural resources such as crops, minerals, and water. Real Estate is then further divided into sub-groupings based on its use: residential, commercial, and industrial. Whether buying or selling, it is highly important to have one’s real estate strategy support one’s overall business objectives and long term goals.

Real Estate acquisition and disposal encompasses management of activities such as site selection review including environmental review, preliminary assessment of market value as well as suitability for intended use, due diligence investigation, risk assessment, negotiation of purchase agreements, and funding/financing analyses. Other related services include the formation of partnerships, joint ventures, holding companies, and other entities specifically for the express purpose of buying and selling real estate.

Our Real Estate Acquisition and Disposal Services include:

  • Negotiating and drafting letters of intent, purchase and sale agreements, and ground leases.
  • Reviewing and analysing title and surveys, developing solutions to title issues, and negotiating title insurance policies and appropriate endorsements.
  • Reviewing and analysing environmental reports, navigating compliance and closure, and advising on legal strategies to limit risks and liabilities.
  • Analysing the existing property and improvements as well as intended future buildings and improvements for compliance with applicable building, zoning, subdivision, environmental, and other building and land use laws and regulations.
  • Negotiating acquisition and permanent financing contracts and security instruments.
  • Negotiating and drafting any necessary off-site access or utility easements and of reciprocal easement agreements and declarations of covenants and restrictions such as for shopping centres and other integrated property developments.
  • For clients having substantial inventory of real estate holdings, assistance in managing those assets through multi-property sale/leasebacks and dispositions of surplus properties.
Property Leasing – Commercial and Retail

Chances are that you’re likely to engage in either a residential or business lease at some point and when you do, there are certain rights – either as a lessee or a lessor – that you will need to be aware of as they may be affected by how the lease is set out. In its simplest form, a lease grants from the landlord the exclusive possession of land/premises for a certain period of time.

Because as a rule you will be bound by anything you sign, it is highly important to engage legal assistance so that you know what your rights and responsibilities will be.  Often, a landlord may use a pre-prepared document. Both parties should carefully examine all the provisions of the agreement including:

  • What is the term of the lease?
  • What is the rent and how is it calculated?
  • Who pays for water usage?
  • Does the rent increase? If so, what are the terms?
  • Is there an option to renew?
  • What happens if the tenant gets behind on the rent?
  • Who pays the insurance?
  • Who is responsible for maintenance costs?
  • What happens if the landlord fails to do something?
  • Is there an existing mortgage in place? If the property is mortgaged, the Bank must give consent to the creation and registration of the lease.

Q Solicitors have been advising our clients on the legalities of Property Leasing for decades, so we can help you make sure that ALL your bases are covered from the get-go… whether you are the lessee or the lessor.

Property Development

The business of property development includes activities such as renovation and re-lease of existing buildings, the sale of unimproved land parcels for future use and development, as well as the purchase of undeveloped land for the express purpose of building specified structures. Through the process, developers coordinate with architects, city planners, engineers, surveyors, contractors, leasing agents and of course, solicitors.

Property developers purchase raw land and existing developed properties and coordinate details to turn their vision into a reality. Developments may include residential land, strata titles, industrial estates, commercial buildings, shopping centres, golf courses, hotels, clubs, urban renewal projects, and rural properties.

The steps of developing a property generally include:

  • Purchase of raw land or existing developed property
  • Determination of market value of property
  • Understanding of zoning and subdivision restrictions
  • Development of building program and design
  • Obtainment of necessary approvals
  • Financing of real estate deals
  • Building or arrangement for builders to build structure(s)
  • Creative control of the design process and execution of the development according to their vision
  • Sale or lease/management of project upon completion
Commercial & Investment Property Acquisition

The acquisition of commercial and investment property should be a carefully considered process, done in partnership with an expert professional employed to represent your interests.

Potential implications include:

  • Income Tax
  • Capital Gains Tax
  • Goods and Services Tax (GST)
  • Obligations as the Buyer to ensure the Title is clear and all documentation is in proper order for the transfer of property

Some things that you’ll want to know when acquiring property are:

  • Is there any land tax owing on the property you are about to buy? Whenever possible, you’ll want to secure a Land Tax clearance certificate from the Vendor.
  • What are the different rates of Stamp Duty?
  • What is the Land Tax threshold?
  • A Critiqe of current lease that is in place.
“Off the Plan” Contracts

Purchasing a unit ‘off the plan’ means that you are buying a property that is not yet fully constructed; you have only the glossy brochure- ‘the plan’- on which to base your purchasing decision rather than being able to inspect the completed property first-hand.

Buying ‘off the plan’ is a popular investment choice, especially in residential property, as one can lock in the purchase prior early on as well as potentially customise the construction to one’s own needs and desires. You are only required to pay a deposit (usually around 10%) with the remainder due at settlement upon completion of the project.

Advantages to buying Off the Plan include:

  • You know the property is brand new.
  • You may be able to customise the construction to your own requirements.
  • You may be able to benefit from any capital gains generated during construction, if the market price of the property is executed to do increase upon completion of the construction.
  • A long settlement period allows time to realise assets and/or raise funds for the purchase.
  • If the purchase of a new property is for an investment, a buyer may qualify for a depreciation allowance.

There are of course risks as well to buying off the plan, namely that there is not a physical structure in existence yet to be examined. Changes could potentially be made during construction to the floor plan and lot configuration that might affect your unit, perhaps indirectly (i.e. traffic flow, parking facilities). The developer usually retains the right to make ‘minor alternations’ to comply with governmental regulations or for commercial reasons. A sunset clause may also allow a developer an escape from the contract should the project not be able to be completed for financial reasons (in which case, your deposit will be returned).

Because of the potential unknowns and because standard contracts are not used in off-the-plan sales, it becomes critical to have your solicitor carefully examine any contract you are considering signing.

You may wish to insert a due diligence clause, allowing for the ability to carry out further inquiries before fully committing to the sale. Likewise, the community rules should be reviewed by your solicitor as you’ll be bound to the restrictions on uses in common areas such as the ability to keep pets.

Wills & Estate Planning

Simply put, everyone who is an adult needs a will. If you die without a will (known as dying ‘intestate’) the courts will decide how your assets are distributed (often by standard formulas based on familial relationship) and potentially create additional costs, delays, and headaches for your heirs. Taking the time to write out your intentions saves trouble for everyone down the line.

Formalising your wishes in a will makes your desires ‘official’ so there is a known record as authorised and signed by you. It’s also critical for those with small children to name guardians by way of a will or this too will be decided by a court. A will also allows you to leave a portion of your assets to charitable institutions. While the basics of deciding how to allocate your assets may be simple (such as leaving everything to one family member), a properly trained solicitor should be involved as well to ensure that your will hold up if challenged in court.

What if you change your mind? You may amend your will at any time. It’s recommended to review your will periodically to ensure it still is applicable to your financial and familial situation. At the same time, you’ll want to review your beneficiary designations for your retirement, pension, and insurance policies as those are automatically transferred.

While rarely considered a ‘fun’ process, estate planning is essential regardless of your net worth for piece of mind in knowing your assets will be distributed according to your desires. Planning ahead and recording your wishes will additionally reduce administrative costs and headaches for your family. A full estate plan typically includes a will, assignment of power of attorney, and a living will/health care proxy (medical power of attorney). Family trusts may also be appropriate in some circumstances.

Estate Planning
Your first step in estate planning should be to take inventory of your assets. This includes your investments, retirement savings, insurance policies, and real estate and/or business interests. Then ask yourself: Who do you want to inherit these assets? Who do you want handling your financial affairs when you are unable to do so? Who do you want making medical decisions for you if you are unable to make them for yourself?

It is also critical to discuss your plans with your heirs as well as other family members who may question your decisions. It is better to avoid surprises or any challenges to your will which will hamper your wishes being carried out.


Trusts are legal mechanisms that follow pre-set conditions (as designated by you) on when and how your assets will be distributed upon your death. Using a trust gives you the control the timing and method of distribution of assets, but also can save you in taxes, reduce liability to creditors, and avoid the necessity of probate court (the body that administers wills).

A testamentary trust goes into effect upon your death with the express purpose of allocated your assets to your desinated beneficiaries. A trust is no substitute for a will, a trust should only be used in conjuction with a will as part of an overall estate planning strategy developed in working with one’s solictor.

Trusts are not just for the wealthy! You may benefit from establishing a trust if:

  • You have considerable assets in real estate, a business, or an art collection
  • You wish to leave your estate to your heirs wuch that that is not directly or immediately payable to them upon your death. You may want to distribute in several portions at set time intervals or upon certain live events (such as graduation from university)
  • You want to support a surviving spouse, but upon their death, you want a portion of your estate to go to other chosen heirs such as children from a first marriage
  • You and your spouse want to maximize your estate-tax exemptions

Some possible advantages to using a trust:

  • The abililty to set your own conditions on how and when your assets are distributed after you die including timing of payments to your heirs
  • Reduction in estate and gift taxes
  • Ability to distribute assets to heirs efficiently without the cost, delay, and publicity of probate court
  • Protection of your assets from creditors and lawsuits
Powers of Attorney

The granting of a Power of Attorney gives to the recipient the power to do all actions and things and to bind third parties just as if the original grantor of the Power of Attorney had entered into the Contract themselves.

There are many different forms of Powers of Attorney
However they fall into five main categories:

  1. Limited Power of Attorney (granted to allow limited transaction)
  2. Normal Power of Attorney (full transactional powers over the Grantor’s property/assets)
  3. Financial (dealing only with financial matters)
  4. Health (dealing with health treatment and related issues)
  5. Enduring Power of Attorney (granted to act on behalf of incapacitated Grantor)

In Queensland, if any document signed under Power of Attorney is intended to be registered at the Department of Natural Resources (the Title Office) then the Original Power of Attorney must be registered at the Title Office.

There are a host of conditions surrounding each of these categories, which our experienced Solicitors can explain to you in detail.

Personal Litigation

Personal litigation is the process of taking legal action (a lawsuit through the courts or mediation between solicitors) to enforce your personal rights. Often personal litigation is undertaken when you feel you’ve been personally wronged, such as in an employment or personal injury case.

Examples of personal litigation concerns include:

  • Professional malpractice and negligence
  • Investor recovery
  • Disputes with financial institutions
  • Insurance claims
  • Real estate and other property related disputes
  • Estate disputes
  • Defamation
  • Land & environment
  • Property damage
  • Contractual disputes / breach of contract
  • Collections
  • Class actions
  • Medical malpractice
  • Legal malpractice
  • Products liability/product defects (consumer litigation)
  • Personal and premise injuries
  • Wrongful death
  • Nursing home liability
  • Motor vehicle and motorcycle accidents
  • Workers compensation
  • Violation of civil Rights / discrimination

In general, one bringing a suit against another party is seeking monetary compensation for their damages which they believe to be directly caused by the actions or lack of action by another party.

Additionally, one may wish regulations to be altered to prevent future instances of injury to others.  Often, personal litigation will be settled out of court, if both parties can agree on an equitable settlement.  Because of the efforts and emotions involved in going to court, settlement is often a preferable option.

Notary Public Services

A notary public is a public official who has been appointed with the authority to provide services in relation to certain non-contentious concerns such as estates, deeds, powers-of-attorney, and international business. A notary might administer oaths, take affidavits, prepare, witness, and authenticate the execution of certain documents, and prepare ship’s protests in cases of damage. Commercial or personal documents that either originate from or are signed in another country generally must be notarized to be officially recorded and take legal effect. A notary must remain impartial in these matters as his duty is to the transaction itself and not just to one party.

Notary services include:

  1. Attestation of documents and certification of their due execution for use in Australia and internationally
  2. Preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use in Australia and internationally
  3. Administering of oaths for use in Australia and internationally
  4. Witnessing affidavits, statutory declarations and other documents for use in Australia and internationally
  5. Certification of copy documents for use Australia and internationally
  6. Exemplification of official documents for use internationally
  7. Noting and protesting of bills of exchange
  8. Preparation of ships’ protests
  9. Providing certificates as to Australian law and legal practice
Company Restructuring

Restructuring involves reorganising the legal, ownership, and/or operational structures of a company to improve profitability and efficiency of operation.

It is important to always be aware of issues such as Capital Gains Tax, GST, long-service leave (and/or other employee emoluments) which may effect your Land Tax and Payroll Tax obligations.

Restructuring may occur in the case of:

  • Matrimonials
  • A change of ownership or ownership structure
  • A de-merger
  • A response to a major change such as bankruptcy
  • Repositioning
  • A buyout

Restructuring may include actions such as:

  • Financing debt
  • Selling portions of the company to investors
  • Reorganising or reducing operations

Our team at Q Solicitors are skilled in assisting clients with the details and negotiations associated with a business restructure.

Business Start Ups

When starting up a business, it is of utmost important to keep all legal matters in good order.

To prevent future legal problems from hampering your business growth, Q Solicitors uses a Business Start Up – CHECKLIST to ensure all legalities are properly accounted for from the beginning. Your business’ financial and legal health is our greatest concern and we’ll help you get started on the right foot so that you are in an excellent place from which to prosper.

Some legal considerations for business start-ups include:

  • Office – your physical space must be registered with the Division of Workplace Health and Safety. This applies even if you operate a non-dangerous business or work from home. If you are found to be unregistered in a random inspection, you may be subject to prosecution.
  • Trading Name – once you intend to trade under a business name other than simple your own legal name, you must register with Consumer Affairs.
  • Bank Accounts – your business should have a separate bank account as to avoid mingling personal and business assets and expenses and the account should be reconciled regularly. Many businesses fail early on due to poor record keeping, among other factors. Being able to easily reference what profit you are making will help you at tax time and in keeping up payments with creditors.
  • Licences and Approvals – most businesses require a licence to begin trading or else will be subject to prosecution. Your local council may also have additional Town Planning requirements.
  • Contracts – if you are acquiring an existing business or leasing premises, it is crucial to understand the liability and obligations involved as per the contracts.
  • Incorporation – you will need to determine whether it’s most beneficial to trade as a company, sole trader, partnership, or a type of trust.
  • Insurance – there are many varieties of insurance that may be of use to you: contents insurance (for the premises), professional negligence, sickness, accident, as well as life insurance.
What happens if either party cannot settle on the due date?

Mostly this is dealt with by requesting an extension of time from the other party.

This is important as Queensland operates under a system known as “time is of the essence” which means that where a date is stipulated for the performance of an obligation, the date and time will be strictly adhered to.

Whilst extensions of time are not uncommon they are not granted “as of right” and are considered not to be part of the basic conveyance requirements.  Depending upon the situation, an extension of time may find you being liable for interest on the unpaid purchase price or at the least the cost of your own and/or the other side’s additional legal fees.

If a party finds themselves in breach of the contract, they will face a number of consequences (including but not by way of limitation) forfeiture of the deposit and being sued for damages or specific performance.

What is a disbursement?

A disbursement is the name used to describe payments made on your behalf for third party payments.  Most commonly it is used to describe the payment of costs of the search fees.

What is the cooling off period and how does it affect me?

In Queensland the system of conveyancing is different from other states in Australia.
Queensland does not operate on the basis of exchange of contracts but rather the buyer and the seller are bound contractually (subject to specific terms and conditions) immediately after the contract is signed by both parties.

To afford the Buyer some form of protection, a statutory cooling off period and disclosure requirements have been established under the Property and Motor vehicle Dealers Act (PAMDA).

A cooling off period is the right of a purchaser of property to cancel the agreement for any reason within 5 working days from the date the accepted contract is delivered back to the Buyer.

Canceling the agreement (or rescinding, as it is known) can cost the purchaser 0.25% of the total purchase price and often it is better to seek the advice of the Solicitor who may be able to relieve you of the obligations by another method.

The cooling off period does not apply to all transactions (it does not apply at auction or by private sale for example) and can be shortened or waived by completion of a certificate of independent advice signed off by your Solicitor.

Why should I use Conveyancing Queensland?

We offer personalised customer service, delivered by experienced solicitors and supported by our own leading edge technology.

Our firm is small enough to know our customers by name and big enough to deal with the issues.

We take the time to know you and your needs to ensure we provide the right advice for now and into the future.

When should I talk to a Solicitor?

Once you have made the decision to buy or sell your property, engaging the services of a solicitor is your first step.

Often there will be “special conditions” to your contract that you should be advised on. Even if these terms are for your benefit you will need to be assured that the wording does achieve what it is intended to.

Five minutes by a professional overlooking a contract can often save hours of time and years of heart-break.

Why should I use a Conveyacing Solicitor?

Buying or selling property is usually one of the biggest financial transactions of your life.

The transaction is governed by a great deal of rules, regulations, and legislation.  The consequences of making a mistake can be both costly and heartbreaking.

In Queensland only qualified legal firms are entitled to charge for undertaking a conveyance.

You can undertake the conveyance yourself or by means of an “assisted kit” Just remember though that you will be the one carrying the burden if something goes wrong.

Conveyancing Queensland has an in-depth understanding of all the law concerning property transactions. We are required by law to carry professional indemnity and fidelity insurance.

What is Conveyancing?

Conveyance is the name most commonly used for the transfer of property from seller to buyer.

Flat Rate Fees

We believe every conveyance and every client is different.  For this reason we charge a flat rate for the normal conveyancing attendances but will charge on a “User Pays” basis for additional attendances that are outside the normal requirements. Sometimes these costs are able to be recovered or negotiated with the other side.

Search Fees

We carry out a comprehensive list of property checks and searches, which are charged to you without markup ensuring you are only paying for what you get.

Other Disbursements

Sometimes we incur additional costs such as non-local phones, bank charges, photocopying and fax charges.  These are automatically tracked and noted on your file.

If these charges exceed our standard $35.00 per file rate we reserve the right to charge for them on an as used basis.

All fees and charges are presented and explained to ensure you have the whole story of the property being purchased.

Government Charges

When purchasing, there are standard State and Local Government charges such as Stamp Duty, Registration fees and search and inspection fees.

Use our Stamp Duty Calculator to estimate your Stamp Duty charges

What happens at settlement time?

Settlement is the finalisation of the sale or purchase process. There are usually four parties involved:

  • the representatives of the vendors and their banks and
  • the representatives of the purchasers and their banks.

On settlement, the vendor will:

  • discharge any mortgage they have with their Financiers and deliver all documents to the purchaser’s representative;
  • who in turn checks them and delivers them to the purchaser’s financier;
  • who will advance the funds to enable the purchase to complete.

The real estate agents are then authorised by both parties to release the deposit and to deliver the keys to the new purchaser.

Who notifies the authorities that I have purchased a property?

When your transfer papers are lodged for registration after settlement, the Local Council, the Public Utilities (such as water) the Valuer General and the Office of State Revenue are all automatically notified of the purchase.

Other providers, such as the phone and electricity suppliers however, will need to be notified by the purchaser.

See our “shifting check list” for the list of people who need to be notified.

What is a Change of Name?

Also known as a Title Transfer
Changing the name on a title usually involves the addition or removal of one party to or from the property’s title. This is known as a Title Transfer.

If the change of name is merely that – a change of name and not a change of person, (eg  changing you name when married) it may be that there is no change necessary or at the least merely registering  an appropriate record of change of name.

In a case where the change of name is actually a change in person or identity (eg changing a trustee but not the trust), one has to file a full property…. (any more to this??)

The Process
Our Solicitors will not only prepare and guide you through the standard forms and processes  – the completion of the Land Transfer form, along with Lodgment Fees, Stamp Duty and Capital Gains Tax (if the property was an investment) – they will make sure you understand each step.

Legally, it may be that you are considered to be selling an interest in the property from one party to another. There may be certain exemptions, allowances or rebates that are available and there will be other costs to be considered. Some of these are outlined below.

Other financial costs may include:
– Loan discharge fees
– New loan application fees
– Consent fees
– Stamp Duty
– Mortgage insurance

Business Sale and Purchase

Selling one’s business or purchasing a pre-existing business involves careful consideration of both financial and legal concerns on the part of both parties.

Selling a Business
If you are undertaking a business sale, a potential purchaser is going to want to know why you wish to sell and will certainly analyse your company’s current and projected future situation as it relates to their own benefit.

Once you are ready to sit down and work out a sales agreement is when you should acquire legal counsel to protect your interests. It is highly important that you understand any contract that you are signing as you will be legally bound by its terms.

Purchasing a Business
A short list of considerations you might have during the sale/purchase process include:

  • Vendor – what is the reason for sale of business
  • Sales – patterns, trends, customer base, current suppliers
  • Costs – fixed and variable costs, staff costs
  • Profits – financial records, future cash flow and profitability
  • Assets – identify and check all assets, including intellectual property and leasing arrangements
  • Liabilities – outstanding debts, refunds and warranties
  • Purchase agreement – review carefully
  • Tax – GST, Capital Gains Tax, Stamp Duty implications
  • Legal issues – leases, business structure, agreements
Asset Protection

The fundamental goal of asset protection planning is to limit and lessen any financial and legal risks to your business and personal assets from potential creditor claims and lawsuits.

Without asset protection in place, you could undergo disastrous loss of both personal and business assets. The longer a plan is in place, the better you will be insulated from these risks.

Some possible liabilities to your business include:

  • Debts and mortgage obligations to third parties and vendors
  • Claims for damages caused by your employees
  • Product or professional liability and consumer-protection issues.

Developing an asset-protection plan may deter a potential claimant or help prevent the seizure of your assets after a judgment.

Separate legal structures are often implemented as part of an asset protection plan. 
These strategies include:

  • Corporations
  • Partnerships
  • Trusts

The most suitable structure for your situation will depend on the type of assets as well as the types of creditors most likely to pursue claims against you.

What is Buying ‘Off The Plan’?

Buying a property “off the plan” is the purchase of a property which is either not fully constructed or for which construction has yet to commence. It is a popular way to invest, as there are many advantages, but also some risks to consider.

Advantage of Buying Off The Plan

  • You are purchasing a brand new property with warranties on work.
  • The opportunity to customise it to your own specific requirements.
  • Potential benefit from any capital gains generated during construction.
  • A long settlement phase also allows the buyer time to realise assets or raise finance.
  • A new property as an investment, generally qualifies for depreciation allowances.

Risks Associated with Buying Off The Plan

  • Possible minor changes to the floor plan, size and configuration of the lot.
  • Community living issues (eg. the keeping of pets).
  • Suitable methods for payment of the deposit.

If you are considering purchasing a property off the plan, be sure to obtain advice from your solicitor.

Lease Renewals

With more than 30 years’ experience, there is no commercial leasing case too complex for Conveyancing Queensland.

Our team of solicitors will aim to ensure you and your business premises negotiate favourable terms and conditions that will be of benefit for now and into the future.

Some quick tips you may find of help:

  • If you lease your commercial or retail property, you should begin reviewing the lease terms up to 12 months prior to the end date.
  • By law, a landlord is required to provide a written notice at least six months, but no longer than one year, prior to the end of the lease.
  • The notice will either offer you, as the tenant, a new lease (including information on the terms and conditions) or advise you of the landlord’s intention NOT to offer a renewal or extension.

For reliable, expert advice regarding the lease renewal of your business premises
Call 1800 216 777 to speak with our conveyancing experts about lease renewals for your business, or email your query to our conveyancing experts at info@lawstore.com.au.

Purchasing a Business

Phase 1 – Getting Your “Full Story”
Purchasing a business is a big move, and each purchaser will have different motivators and end goals.  We, as your legal advisors, will firstly need to understand you and your goals – both personal and business – to ensure we provide the best possible guidance, that will lead to your individual end goal.

Phase 2 – Investigating The Business
There are endless considerations that should be made and questions to be asked of the
vendor to ensure we know as much as possible about this business.

Some of the key areas for consideration include:

  • the vendor’s financial records
  • all relevant operational documents
  • whether the vendor runs similar businesses
  • the state of existing stock
  • the current and future climate of this industry
  • the presence of a current marketing plan
  • staffing needs
  • any trademarks or patents.

Request more information
Call 1800 216 777 to speak with our conveyancing experts about purchasing a business, or email your query to our conveyancing experts at info@lawstore.com.au.

Selling a Business

Business owners choose to sell for many different reasons.  No matter what your reason, selling your business should never be rushed. Seek professional legal advice early on to ensure the process is done correctly.  It will save you time and money.

Before you put your business on the commercial market, consider if there isn’t another option such as selling to a family member, employee, customer, supplier, competitor or industry colleague.  You also may consider selling to a third party, whilst remaining on in a management role.

You will also need ensure all your financial records and operational documents are up to date, to hasten the sale process.

Request more information
Call 1800 216 777 to speak with our conveyancing experts about the sale of your business, or email your query to our conveyancing experts at info@lawstore.com.au.

Transfer within couples

Expert advice, for every scenario
Our expert solicitors will guide you, step-by-step, through the transfer of property between:

  • Married couples
  • Same-sex couples
  • De-Facto partnerships
  • Blended families

Property transfer, minus the STRESS
These transfers do NOT need not be stressful.  Although these cases can sometimes involve complex negotiations, with the help of our experienced solicitors, you can carry out your property transfer quickly and smoothly, without unneeded conflict and confusion.

Getting the full story
Because no two family transfer cases are the same, we offer every client the same professional, personal and completely confidential service.  We listen and ask questions to make sure we understand your story; and then we explain our legal story to you.  Our goal is to make sure you understand every step of your property transfer journey, and that we are working together to arrive at the best possible outcome for you, our client.

About refinancing a property

Never rush in
If you are thinking about refinancing your home loan, there are many things you must consider and it is not something you should rush in to doing.

The overall costs involved with the process may outweigh the benefits you receive.

Some of the fees associated with refinancing your home loan include:
– Conveyancing fees
– Government fees and charges
– Potential lenders’ fees

What is a Power of Attorney?

The granting of a Power of Attorney gives to the recipient the power to do all actions and things and to bind third parties just as if the original grantor of the Power of Attorney had entered into the Contract themselves.

There are many different forms of Powers of Attorney
However they fall into five main categories:

  1. Limited Power of Attorney (granted to allow limited transaction)
  2. Normal Power of Attorney (full transactional powers over the Grantor’s property/assets)
  3. Financial ( dealing only with financial matters)
  4. Health (dealing with health treatment and related issues)
  5. Enduring Power of Attorney (granted to act on behalf of incapacitated Grantor)

In Queensland, if any document signed under Power of Attorney is intended to be registered at the Department of Natural Resources (the Title Office) then the Original Power of Attorney must be registered at the Title Office.

There are a host of conditions surrounding each of these categories, which our experienced Solicitors can explain to you in detail.

What is an Inter-Family transfer?

An Inter-Family transfer is essentially the transfer of property from one family member to another.

Just like a change of name, Inter-Family  transfers are common practice, yet each scenario is different.

When is an Inter-Family transfer required?
We have found some of the most common catalysts include:

  • Death in the family,
  • Divorce,
  • Sub-division of larger estates,
  • Inheritance,
  • Gifting, or
  • Buying and selling among family members.

Some cases involve family members who are co-joint owners in a property, deciding to transfer the ownership for part of the property to another family member.

No transfer too complex
Conveyancing Queensland’s team of solicitors are well equipped to handle whatever family transfer scenario you present.

We listen, ask questions to ensure we fully understand your unique needs, then offer practical, easy-to-understand advice for all parties.  We will handle your family transfers in a thorough, personoalised and efficient manner.

What is a Guarantors advice?

A Guarantee is an agreement by which the Guarantor accepts the responsibility for a debt owed by someone (the borrower) to someone else (the lender) if the borrower fails to do so.  The bank will require a certificate to be signed off, acknowledging that the guarantor understands the risks with the process.

The Difference Between Guarantees and Indemnities
Guarantees and indemnities are very similar in nature.  In both cases the person providing the guarantee or indemnity will ultimately become liable for the debt if the original borrower does not satisfy it.

In the case of a guarantee the guarantor only becomes liable if the borrower refuses to pay.

With an indemnity the “guarantor” becomes liable if the original borrower has not satisfied the debt regardless of whether any demand has been made directly upon the original borrower or not. Under a guarantee the liability only arises when the rights against the original borrower have been exhausted.  Most documents are called guarantees but in actual fact also contain indemnity provisions and thus it is not safe just to consider the title of the document.  The content of the document contains the obligations and must be perused and considered carefully..

Your Liabilities
Basic Liability –
The Guarantors guarantee that they shall pay to the lender the basic loan.  This amount will only become due and payable in the event of a default of any description by the original borrower.  Should any default be made then the guarantor is liable for the full amount regardless of whether the term of the loan has yet expired.

Additional Liability –  If the borrower defaults under the original agreement the lender may incur further costs in attempting to obtain repayment of the debt.  These costs will include the lenders administrative costs, legal fees, bank fees and charges and of course interest on those charges and fees.  Charging interest on these additional fees of course has a snowball effect and can increase the actual liability very quickly.

Additional Costs

When purchasing a property, you should be mindful of the additional costs that can be associated with this process.  Not all of the list below will apply to everyone, but some potential charges to consider include:
– Lender’s fees
– Inspection costs
– Insurance
– Moving costs
– Estate agent fees

Got a question or need more help?

For more information on your business, personal or property legal needs, you can:


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