Author Archives: Hall & Co Solicitors

Online defamation

The issue of online naming and shaming of people and businesses is rife and although venting rage and disappointment online can provide some emotional release and a warning to others, the risks are immense.

If you (or your business) are named online, whether in a blog, on a social media platform or on a website, and the things being said about you are misleading, damaging to your reputation, blatantly false or simply malicious, you may have legal rights against the person who posted the statements online. Don’t be fooled into thinking that this is an easy road to travel though, as the tests to prove and the defences against legal actions in this area of law are challenging to overcome for plaintiffs and defendants alike. In fact as an eminent Supreme Court justice said to the writer in court recently, “defamation proceedings are a fools game”. Having said that, there are obviously situations where a person well and truly deserves justice and these are the matters the court will take seriously.

As is the case in many areas of law, resolutions to matters broadly referred to as “defamation matters” are often resolved by mediation or by consent on the doorsteps of the court because of the alarmingly high costs involved in pursuing matters that are often very difficult to prove. Issues such as finding real identities based on the IP addresses of the publishers of damaging content, the number of people who have viewed defamatory material and a raft of other matters such as damage suffered can be hotly contested over many months or years and once legal proceedings are instituted it is seldom as easy as “just giving up” – plaintiffs who wish to call an end to the fight may then be faced with an order to pay their opponent’s costs.

In many circumstances, the best solution to being victim to perceived defamation is spending a small proportion of what you would have spent on legal fees to engage an expert in SEM & SEO to spread the truth of the situation far and wide. You may find that this approach will send what was a second or third result on Google to the third or fourth page and statistically very few people even click that far – this may be a much more practically (and financially) achievable result than seeking the assistance of the higher courts in your state or territory.

For more see: Ben Hall on The Project

Is your Personal Property Safe?

A recent court decision has provided direction to legal practitioners on the necessity of registering all personal property which is subject to a lease/ hire agreement on the Personal Property Securities Register (the PPSR).

Since the introduction of the Personal Property Securities Act 2009 (Qld) (the PPSA), it has been emphasised that persons with an interest in personal property must secure these interests. Simply put, all personal property (e.g. equipment) the subject of an agreement whereby you enable another person or company to have possession or use of your personal property before the obligations (i.e. full payment) of the agreement that is the basis of this arrangement are performed, must be registered on the PPSR to ensure your rights to that personal property are not outranked by entities with competing rights. The PPSA highlights that personal property is nearly all types of property other than real estate.

In the Australian case of White v Spiers Earthworks Pty Ltd [2014] WASC 139, Spiers Earthworks Pty Ltd (Spiers) entered into a hire agreement (the Agreement) to sell its business to BEM Equipment Pty Ltd (BEM). Pursuant to the Agreement, BEM took possession of personal property with a market value of greater than $1 million from Spiers.

Unbeknown to Spiers at the time, Spiers had not registered its interest in the personal property on the PPSR. As a result, Spiers lost the majority of its assets when BEM became insolvent. The appointed receiver that was to distribute the assets to BEM’s creditors denied Spiers had a legal right to the personal property subject to the Agreement as it did not have a secured interest, that is to say, Spiers had not registered the equipment in question on the PPSR.

Thus, title to the personal property was considered to have passed to BEM upon possession and accordingly became part of the asset pool which was distributed to creditors who had registered their interests and as a result took priority over Spiers. Spiers lost all rights to its personal property and sustained a loss of more than $1 million.

Sadly for Spiers, this loss could easily have been prevented. Spiers could have registered its interest in the personal property on the PPSR and the receiver of BEM’s assets would have had to release the personal property back to Spiers. This case emphasises that the courts are now enforcing the provisions of the PPSA.

If you have personal property that is not in your possession, it is vital that you protect your interests in this personal property by seeking urgent legal advice on the way the PPSA affects you., Hall & Co Solicitors will be happy to assist you with any enquires you have relating to the PPSA and the PPSR.

Domestic Violence and Lawyers

Family and domestic violence occurs when a family member uses violence or abusive behaviour to control another family member.

Factors that may indicate family and domestic violence include (but are not limited to):

1. Family Law Act 1975; and
2. Domestic and Family Violence Protection Act 2012.

Contrary to common belief, domestic violence is not just physical as many people are also victimised though verbal, emotional, economic and sexual abuse.

A recent study has shown that over 16,400 adults in Australia aged 18 years and over fall victim to this heinous behaviour with up to 100 victims dying as a result (Australian Domestic and Family Violence Clearinghouse, Survey Studies). Unfortunately many people do not report the actions of the abuser to the proper authorities for fear of the repercussions or for fear that they will not be believed.

Recognising that this abuse is happening and realising that it must stop is the first step in preventing this abusive behaviour from continuing.

Law practices are here to assist victims of domestic violence from a legal perspective and are able to advise the victim on their rights and take the next step on their behalf to reduce the likelihood of further abuse from occurring.

It is important to remember no one is alone. Domestic violence is not something to be embarrassed about and there are numerous government and other organisations set up to assist. Safety and self-respect is the most important thing and we are ready, willing and able to assist you in taking the next step to protect people from domestic and family violence.

Should you require further information about the legal processes involved in dealing with domestic violence, please do not hesitate to contact our office on (07) 3219 3830 or call the Domestic Violence Helpline on 1800 811 811 for assistance.

Special Hardship Orders

In circumstances where your provisional or open driver’s licence has been suspended following accumulation of two or more demerit points whilst driving during a good driving behaviour period or if you are convicted of a high speed offence of driving more than 40km/h over the speed limit you may be able to obtain a special hardship order from the court which would have the effect of reactivating your suspended driver’s licence.

Not unlike an application for a work licence following an offence of drink / drug driving, you must meet certain eligibility criteria in order to be entitled to apply.

An important point to remember is that you must lodge the application with supporting affidavit material with the court within 21 days after your licence has been suspended.

Therefore, we strongly recommend that upon receiving written notification that your licence has been suspended following the accumulation of points during a good driving behaviour period or a high speed offence, that you contact a law firm to determine whether you are eligible to apply for a special hardship order.

If you are eligible to apply for such an order, we are required to prepare the necessary applications and supporting affidavit material to meet the relevant criteria required by the legislation.

This material is then filed before the court and at which time we will be able to provide you with the date and time that this matter will be heard by the court.

Please note that the letter from the Department of Transport will state the date of your licence suspension. Until the Department of Transport is notified of an application for a special hardship order being filed with the court, you will not be able to drive. Even if you have actually filed the application, if you are pulled over by the police prior to having notified Queensland Transport, you will most likely be charged by the police with the offence of driving without a licence.
This is why we lawyers are always eager to have clients visit our office upon receipt of the letter from Queensland Transport so that the material may be filed at the first available opportunity thereby reducing the period of time that you are unable to drive freely.

At the first return date of the application (the date that your application is heard by the court), we will appear with you and do all of the talking to the magistrate. Your experience will therefore be as easy and comfortable as it can be in the circumstances.

If you are successful in having your application granted, the court will make orders setting out the particular way your restricted licence will operate. For example, you may only be able to drive between the hours of 8.30am and 5.00pm from your home to your work and for no other reason. You may also be required to wear a uniform. If you breach any of these orders, you will be subject to a charge by the police.

Please note that the order you receive from the court is NOT a licence and you will still not be entitled to drive until the order has been processed by Queensland Transport who will note the specifics of the order on your driver’s licence which will then enable you to drive within the criteria set out by the court. Should you have any queries regarding applying for a special hardship order please do not hesitate to contact our office.

Bankruptcy law

Bankruptcy is a voluntary means of quickly dealing with creditors if the debts you owe are $5,000 or more and will be in place for 3 years with the exception of circumstances where your trustee lodges an objection to the discharge of your bankruptcy and therefore the bankruptcy period may be extended for an additional 5 years.

The process is commenced by the lodgement of a Debtor’s Petition but you may be eligible to apply for alternative legislative agreements to control the situation without the serious implications that come with bankruptcy.

Frequently Asked Questions

Bankruptcy – are you going to take my house?

Your trustee in bankruptcy (the person who is responsible for your financial situation when you are bankrupt) will ascertain what property is to be divided amongst your creditors (the people to whom you owe money) at the date of bankruptcy. This will not include an interest held by another party and is determined on a case by case basis whether your trustee will seek to recover the value of your interest in the house.

Is somebody going to take my belongings?

As at the date of bankruptcy, your trustee will determine what assets (anything of value owned by you) and anything you own during the term of the bankruptcy may be recovered and sold by your trustee. Items which may be retained by you may include the following:

  • Funds from superannuation policies;
  • Life insurance policies;
  • Household and personal effects;
  • Motor vehicles (depending upon the amount of equity in the vehicle);
  • Tools of trade used to derive an income

What happens to debts I incur after bankruptcy?

You will be responsible for any debts incurred after the date of bankruptcy.

Creditors are continuing to hassle me, what do I do?

The legislation prevents creditors from recovering their debts from you after bankruptcy though it is not uncommon that often creditors will not document that you have been made bankrupt and you may have to advise them of what has occurred and provide them with your trustee’s details so that they are able to confirm your bankruptcy.

Please contact Hall & Co Solicitors to arrange an appointment to determine what assets are likely to be effected if you decide to apply for bankruptcy or explore the alternatives which may be available to you.

Part IX Debt Agreements

A Part IX (Part 9) debt agreement provides a relatively informal, low-cost alternative to bankruptcy for low income debtors (people who owe money to others).

To be eligible to propose that a Part IX debt agreement be formed, the debtor must:

1. Be insolvent as defined by the relevant legislation;
2. Meet the relevant income, debt and asset restrictions as provided by the legislation;
3. Not have been bankrupt, party to a debt agreement or given an authority under Part X of the Bankruptcy Act in the 10 years before the proposal time.

The benefits of forming a Part IX debt agreement is that upon acceptance of the agreement by creditors (the people to whom money is owed), the debt can be repaid over an extended period of time, during which time those debts are frozen.

If you wish to make a Part IX debt agreement proposal and you meet the eligibility criteria, we will prepare the relevant information and obtain from you the necessary supporting documents such as account statements etc and provide that to the official administrator who will then determine whether or not you have met the eligibility criteria which will then be distributed to your creditors for their acceptance or rejection.

If the majority of the creditors (in value) who reply accept the proposal within the relevant time frames, you will be required to meet the payments as set out in the debt agreement and the unsecured creditors will not be able to take any action against you or your property. There are time limits and criteria required to be met and if you require assistance please contact Hall & Co Solicitors to discuss the matter further.

Part X – Personal Insolvency Agreements

A Personal Insolvency Agreement is a formal agreement between a debtor (someone who owes money) and their creditors (someone who is owed money) that sets out how the debtor will satisfy the debts.

This document is executed by the debtor and his or her trustee (someone who has taken control of the debtor’s affairs) and will usually spell out exactly how money owed to creditors will be repaid over time and/or the sale of assets.

The agreement is a legally binding document which must be accepted by the majority of creditors. To determine whether you are eligible for a Part X (Part 10) agreement please contact our office for further information.

When we have explained in an easy to understand manner what your options are, if you wish to proceed with forming such an agreement we will attend to the preparation of a report which summarises your financial position to your creditors and the proposal you wish to make to them.

Whilst all creditors are not required to agree, creditors amounting to at least 75% of the dollar value of total debts must agree to your proposal.

If you decide that this is the course of action you wish to take, we will attend to the preparation of the statement of affairs and the completion of the relevant forms for the appointment of a trustee.

A meeting of creditors will then be conducted within 25 days where the creditors will vote as to the acceptance or rejection of your proposal.

If your proposal is accepted, those debtors which have proved their debt cannot take further legal action against you and the agreement shall remain in place until you have fulfilled your obligations as set out in the agreement.

Many legislative requirements must be complied with in order for a Part X agreement to be formed and we therefore recommend you call one of our experienced team members to assist you to determine whether or not you are eligible to propose that a Part X personal insolvency agreement, which can often be significantly shorter in duration than bankruptcy itself and also enables you to find relief from debt in a controlled manner.

What is a Work Licence?

A work licence is a restricted licence obtained by applying to the court in circumstances where the driver satisfies the criteria for the court to grant the licence.

There are two situations in which a driver may be able to apply for a work licence:

1. For a drink driving offence where the blood alcohol concentration (BAC) was below 0.15% at the time of the offence; and
2. A special hardship order, where the driver of a vehicle has accumulated more than 1 demerit point whilst on a good behaviour driving period.

Work Licence Following Drink Driving Offence

The Transport Operations (Road Use Management) Act 1995 (Qld) allows a driver who has been charged with driving or being in charge of a motor vehicle whilst under the influence of alcohol or being in charge of a vehicle while a relevant dangerous drug is in saliva / blood, to apply to the court for a restricted work licence if the following criteria are met:

1. You are the holder of a Queensland open or provisional licence;
2. At the time of the offence, you were not driving in the course of your employment;
3. At the time of the offence, you were detected with a blood alcohol concentration of not more than 0.15%.

Despite satisfying these criteria, you will not be entitled to make an application if, within the five years immediately prior to the date of your application:

1. Your Queensland driver’s licence has been previously suspended or disqualified;
2. You have been disqualified from holding or obtaining a Queensland driver’s licence;
3. You have been convicted of dangerous operation of a motor vehicle.

Please note your eligibility to apply is not affected in certain circumstances such as when your driver’s licence was suspended as a result of non-payment of a State Penalties Enforcement Registry (SPER) fine and a number of other circumstances.

If you are in any doubt please contact Hall & Co Solicitors to discuss your eligibility.

Refusing to Provide a Breath Specimen

If you refuse or fail to provide a breath test or blood test as directed by the police, you may be charged with the offence of “failing to provide a specimen of breath or blood” and you will be required to go to court to have this charge dealt with.

If the court finds you guilty of this offence, you will be penalised as if you had committed a ‘major drink driving offence’, meaning that you will be deemed to have had a blood alcohol concentration of 0.15% or higher and you will therefore be penalised accordingly with a fine and licence suspension.

You will not be able to apply for a work licence in this circumstance.

The Process

In the case of drink / drug driving offences, prior to being released by members of the Queensland Police Service you will be issued with a Notice to Appear, which will set out the particulars of which court you are to attend and the date and time you are required to appear in person.

At this time, it is imperative that you seek legal advice to determine the appropriate course of action you should take and whether you are eligible to apply for a work licence.

You should remember that you only get one chance to apply for a work licence and the legislation requires a number of conditions are met. If unsuccessful, the consequences may be disastrous for both your family and your ability to maintain your employment.

Once you have contacted our office to arrange a mutually convenient time to attend we will obtain the relevant facts from the Queensland Police Service directly and then go about taking your instructions to prepare the necessary material to be filed at court in anticipation of your application.

A good lawyer will ensure that the affidavit (a document explaining your circumstances which is sworn by you and filed in the court) will explain the circumstances of the offence in question, the type of work you perform, why a licence is required to enable you to perform that work, your family and financial circumstances.

If you are not self-employed, your solicitor will also draft the necessary affidavit of your employer for them to sign to support you. The next step is filing the affidavit and application material to allow the court to set down a date to hear your application.

On the day of the application a representative of your law firm will stand by your side and make the application to the court, so that you are not required to say or do anything in most circumstances. For many of our clients, a court appearance is daunting as they have never been to court and they find that having a legal professional with them is an enormous stress relief. Added to this is the knowledge that the solicitor has made similar applications numerous times before and the likelihood of success is therefore higher.

Upon the successful hearing of the application, you will be required to take the order of the court to Queensland Transport office. It is important to remember the court order is not a licence and you are not entitled to drive a vehicle simply because you have the order. When you go to Queensland Transport, your licence will be amended to include the details of the order made by the court. You are further required to carry a copy of the court order with you at all times, along with your licence.

If you are successful in your application for a work licence you will be entitled to drive within the criteria of the order of the court but you should also note that in order to obtain the licence you must make a plea of guilty to the offence you are charged with.

A fine will be imposed at this point along with a prescribed time that the work licence restrictions will be in force. You should note that a court is not obliged to provide a work licence order to you so upon an application being made it is necessary for the criteria to be met to allow the court to exercise its discretion to make an order in your favour. If you find yourself in this situation, contact a solicitor to discuss this matter without delay.

We have significant experience in making this type of application to the court, in courts such as Holland Park Magistrates Court, Beenleigh Magistrates Court and all courts in the greater Brisbane region, and we are able to provide certainty and reassurance to you in what is no doubt a stressful time in your life.

One punch killers to spend more time behind bars

With alcohol related violence remaining a prominent issue of debate in the media and whether new ‘king-hit’ legislation will be introduced nationally. Earlier in the year State governments were subject to frequent criticisms over their seemingly relaxed stance to alcohol related violence. The result of these criticisms are stricter penalties for anyone convicted of killing someone while under the influence of alcohol or drugs.

Prior to the State government’s adopting these new laws, offenders involved in fatal drunken altercations could typically argue for a sentencing of manslaughter, receiving a lesser sentence. Most people have had their fair share of arguments, which under the effect of alcohol tend to escalate. Where these altercations resulted in death, provocation provisions would allow the offender to claim that the death was caused in the heat of the moment as a result of being suddenly provoked. Successfully showing this would result in being sentenced for manslaughter, as opposed to murder. No longer is this the case, State governments have taken a ‘no excuses’ stance on alcohol fuelled violence and many states no longer have a provocation defence. Queensland are an exception to this but it remains to be seen whether courts will accept the defence for alcohol related violence.

The Queensland premier told Parliament “the message is clear: the community wanted something done about the violence and the culture that creates it.” This is a reaction to the case of Thomas Kelly, an 18 year old boy killed on a night out after being randomly punched has fuelled the media scrutiny over current laws. The original five year sentence for his attacker was seen by many as unsatisfactory and this prompted the New South Wales government to introduce new legislation. The new laws impose an eight year minimum and 25 year maximum for anyone who fatally punches the victim while under the influence of alcohol or drugs. Queensland has also followed in implementing the new laws with attackers facing a life sentence. While not all states have adopted this legislation, it is only a matter of time before parliaments concede to public demand and raise the punishment. It’s important to understand the repercussions next time you decide to have a night out.

By Yianni Stergou

How to structure your online business

It is important to remember that an online business is still a business and the fact that it’s ‘online’ doesn’t ordinarily affect legal dilemmas such as the owners being personally sued for a business debt. Simple misunderstandings to do with business structuring can have catastrophic results for hard-working online business people such as you.

Have you considered who the owner of your online business actually is? Have a think about the following key questions which may either set off some alarm bells for you or help you sleep better at night:

Online Business Bank Account

If your online store takes payment to a bank account held in your personal name, whether connected through PayPal or not, chances are your online business is actually you, an individual, with a trading name. In business structuring lingo, this set-up would be referred to as a ‘sole proprietorship’, and in most situations this is the worst possible way to protect your assets from the dangers associated with litigation.

Registration of Domains

Another question to ask yourself is to whom are your domain names registered? Locating the registrant of a domain name is a straight forward process and if the registrant is you personally this may give rise to any legal action being launched against you, even if a company or another legal entity is the owner of the business. For this reason it is important to make sure your domains are registered to the correct entity – usually the owner of the business itself (e.g. a company or a trustee on behalf of a trust).

Business Names

If your online business operates in Australia you are required to register a business name with the Australian Securities & Investments Commission (ASIC) and by and large online business owners understand this and play by the rules. The issue arises, however, when the actual legal owner of the business is not registered correctly behind the business name.

For example, if your online business is trading with the business name “Online Legal Advice” and it is owned by “Online Legal Advisers Pty Ltd”, it is important that this is registered with ASIC correctly. In far too many situations the owner of the business name is identified as the individual (a director of the company) rather than the intended company, eg “Ben Hall” being registered as the owner rather than “Online Legal Advisers Pty Ltd”.

If a creditor is keen on recovering some money from the business and does a search through ASIC to identify the owner of the business name, they will see an individual rather than the company and the painful reality of legal proceedings will ensue for that individual person when it should have been against a company, which is a separate legal entity to the person.

Accountants -v- Lawyers

Lawyers cannot and do not give financial or accounting advice, but we do advise on legal risk including formulating a business structure to protect your assets. Unfortunately many business owners allow their accountant to structure their business, which is great for tax purposes but terrible for legal risk mitigation. Accountants are barred from providing legal advice, but in many situations they do (either intentionally or accidentally, but with the best of intentions for their clients).

Given that accountants are not legally permitted, nor qualified to turn their minds to legal risk for your online business, ensure that when you are setting up your online store you seek the advice of a solicitor as well as an accountant.

If you would like more detailed advice about your own online business, contact us to find out more.