Category Archives:Brisbane legal advice

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.

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

Company Debt Recovery Explained

In recent times the topic of company liquidation relating to business debt recovery has become more apparent in the media as a consequence of both difficult economic times and the lack of proper systems and structures within companies.

The issuing of a Statutory Demand and ultimately the filing of an application to wind up a company (with company debt recovery in mind) with the Supreme Court of your state or territory must be undertaken only after you have received proper legal advice due to the criteria needed to be met by the Corporations Act and the substantive common law principles which exist in this area.

Often Statutory Demands are used as debt recovery tools which is not their intention. Statutory Demands are designed to be used only for the winding up of companies that are insolvent – i.e. those companies that are unable to pay their debts when they fall due and owing.

The Statutory Demand requires consideration of the nature of the debt, the standing by the creditor to issue such a document along with compliance of the contents of the document and service of same.

Failure to comply with these strict requirements may expose people to the risk of the company to which the Statutory Demand is being issued making an application to the Supreme Court to set aside the Statutory Demand which, if successful, may expose people to significant adverse costs orders.

Following the expiration of the 28 day period allowed for a company to respond to a Statutory Demand, the application to wind up, service and advertising also require strict adherence to a number of statutory time limits and steps which must be undertaken in order to bring about a successful winding up application.

Despite these factors, with the proper legal advice, in instances where debts from insolvent companies remain outstanding, these orders are able to be obtained following proper consideration of your individual circumstances and the relevant law.

The staff of Hall & Co Solicitors have previous advised a variety of clients ranging from large corporate entities in the transport industry through to small sole trader businesses, offering practical and affordable advice to recover outstanding money and deal with difficult debtors.

CTP Insurance Law in Queensland

In Queensland if you have a motor vehicle accident or suffer an injury at work, it may be that you are entitled to compensation for the accident you have suffered. This short article gives a summary of the background to an important part of the Queensland insurance landscape. The relevant legislation for consideration is the Motor Accident Insurance Act 1994 (Qld).

If you have a car or other vehicle, such as a motorcycle, that travels on Queensland roads, you must register the vehicle with the Queensland State Government and a part of this registration fee is called Compulsory Third Party insurance, or CTP insurance for short. In the event that there is a motor vehicle accident, the CTP insurance steps in to pay for damage caused to the vehicles involved in the crash and to pay for medical costs associated with personal injuries suffered. But have you wondered who the third party is? What about the first party and the second party?

In Brisbane and throughout Queensland, the first party is the driver or owner of the vehicle which is found to be at fault in the accident.

The second party is the CTP insurer of the at fault vehicle.

The third party is the person or people injured in the accident.

The Queensland government felt that it was necessary to force everybody to take out insurance to cover injuries caused by motor vehicles as a matter of public policy, due to the large medical costs that can ensue.

Due to the large amount of money held by CTP insurers (just think, everybody who drives in Queensland contributes a large amount of money every year to their accounts), an industry has sprung up around personal injuries sustained due to car accidents, motorcycle accidents and other motor accidents. This is why people hire personal injuries lawyers in Brisbane and throughout Queensland.

Personal injuries lawyers understand that in most cases it is more expensive for a CTP insurer to fight against a claim made against them for money due to an injured person than to simply pay a reasonable amount of money to them. Litigation is often an option for somebody who is fighting resistance from an insurance company and lawyers use this as a threat to make sure the CTP insurance companies don’t just hold onto the money and earn interest on it, but use it for its rightful purpose – to compensate people who have been injured in motor vehicle accidents.

There are large fines if you do not obtain CTP insurance for your car or bike but more troubling than this is what can happen if you get into an accident. If you don’t have CTP insurance and you cause somebody an injury, you may be personally liable to pay them damages and compensation, so make sure you have CTP insurance!

For more information you can visit the Motor Accident Insurance Commission or contact a lawyer.

Tips for Creating a Queensland Will

When you are looking for a Mt Gravatt solicitor to visit in order to draft your will, there are some points you should consider before you book a time for your appointment.

Firstly, it’s in everybody’s interests that the drafting and execution processes associated with forming a legally binding will proceed as efficiently as possible. The main way you can achieve this is by ensuring that you have prepared everything in advance so that your lawyer can easily ascertain your intentions and convert them into a will.

Here are some hints and tips for you to make the process of forming a will in Queensland easier:

  1. Create a list that explains who the beneficiaries are and in particular their relationship to you (e.g. daughter, sister, spouse etc).
  2. Compile documentation to do with any property you own so that your solicitor can include real property descriptions in the will rather than street addresses.
  3. Check that you are providing your lawyer with current information to do with your company by conducting a search with ASIC prior to your consultation.
  4. Find the details of your life insurance policy so that your lawyer can put these on file with your will (if you are storing it in safe custody with your solicitor) – this will make life easier for your executors when it comes time to manage your affairs.
  5. Draw a diagram of your assets and liabilities and who owns what and what will go to whom so that your lawyer can see much more easily what your testamentary intentions are.

Importantly, remember that there is legislation that will make it possible for people to challenge your will in certain circumstances, so it is critical that you obtain legal advice to ensure that if this does happen, your will is likely to stand up to the challenge. A key way to do this is to make sure your will provides for people who may make what is known as a family provision claim.

Finally, avoid using DIY will kits. Although these are usually as valid as a will drafted by a qualified Australian Legal Practitioner (solicitor), you don’t get the face to face question & answer session that a lawyer will provide for you. It is this quizzing of your legal affairs that may prompt you to remember something you previously wanted to include in your will or that may prevent you from making a mistake.

If you would like to come and see us at Hall & Co Solicitors, we have plenty of free parking surrounded by gardens with a view of picturesque Mt Gravatt. Our office is located in the heritage listed building at the top of the Mount Gravatt Showgrounds – simply look for our signs once you have come into the main showgrounds gate off Logan Road.