• Uncategorized

    How to safely share personal information

    In an online virtual world, it’s often quick and convenient to simply email or text someone your personal details. But have you ever stopped to think whether it’s safe to share personal details that way?

    The short answer is that it’s not safe. If you’re intending to transfer or receive a large sum of money from someone, it’s well worth spending the extra few minutes to call them on a number you know is theirs, or meet them in person, to confirm the account details.

    Hackers have been known to intercept emails and change account details, and spoofing a mobile number is easy, making it quite simple to appear as though someone you know has sent you their account details.

    Solicitors and real estate agents, both of whom deal with a lot of personal information and large sums of money more often than most, are well aware of the potential risks. They’re also more likely than most to be targeted by potential hackers.

    When property dealings went online about five years ago, there were quite a few stories about people’s money being stolen. While some of those stories didn’t quite make sense to those who understand how the systems work, it was happening often enough that something needed to be done to try to stop it.

    Unfortunately, nobody has come up with a perfect online system. Until someone does:

    • Always confirm bank account details in person or by calling the person on a phone number that you know belongs to them (and not taken off the same email that gives you the account numbers).
    • Don’t send any sensitive information that can’t be replaced by email (especially not full credit card details).
    • Always ask if your solicitor or real estate agent has a more secure communication system than emails and text messages, especially if your matter is likely to be a lengthy one.
    • Don’t give anyone else access to your emails or phone.
    • If your bank calls you to ask if there is a problem, follow their instructions. 99% of the time, there isn’t a problem, but you don’t want to be part of the 1%!
    • If someone changes their account details partway through a matter, be especially cautious, and make sure you confirm the new account details in person or by calling them.
    • Check email addresses. Common changes are small “typos” in the address that the scammer hopes you won’t notice. Don’t just hit “reply” and continue the conversation, re-enter the person’s email address to make sure that the email is going where you want it to.

    For more information on general online safety, visit the eSafety Commissioner’s website.

  • Wills and estates

    Why do I need a Will?

    Last Will and Testament

    As solicitors, we quite often are asked “Why do I need a Will? I don’t own much.”

    The short answer is, everyone over 18 should have a Will, whether you think you own much or not.

    A Will isn’t just for rich people, it’s for everyone who wants to make sure that if they pass away, their assets go to the people they intend. If you don’t have a Will, your assets will be left to people in accordance with the laws of intestacy. This may or may not be what you want to happen.

    Without a Will, you’re also leaving your loved ones to either administer your estate or try to obtain Letters of Administration without any written direction from you. If you have certain classes of assets, or your assets are above a certain threshhold, your loved ones will need to apply to the Supreme Court of New South Wales for Letters of Administration. This process is more difficult and time consuming than an application for Probate. 

    We’re also asked whether a Will kit or online Will template is a good idea. While we’ve seen some people successfully use a Will kit, others are very lucky that they’ve decided not to use their old Will kits and have come to see us about their Wills.

    A Will kit works if you carefully follow the instructions, and your requirements for your Will are very simple – and even then, some people still make mistakes!

    Online Will services are becoming more popular, and for people with very simple circumstances, again, they can work well. Unfortunately, there’s no solicitor proofreading them at the end, and if there are mistakes, it’s unlikely that they’ll be found until it’s too late.

    Finally, doing your Will with a solicitor ensures that it is signed correctly. Will signing has particular requirements that solicitors are familiar with and do everyday.

    If you’d like to discuss your estate planning needs, contact us for an obligation-free chat.

  • Uncategorized

    Why do I need a Foreign Resident Capital Gains Withholding clearance certificate if I’m Australian?

    If you’re selling a property for more than $750,000, you may have been told that you need to get a “Foreign Resident Capital Gains Withholding clearance certificate”. Despite the name, this is the certificate that Australian tax residents will need to obtain, otherwise the purchaser of your property is obliged to withhold (and remit to the ATO) 12.5% of the sale price.

    If you aren’t an Australian tax resident, you may be able to apply for a variation certificate, lowering the amount that the purchaser withholds to an amount between 0 and 12.5%.

    To ensure you’re able to easily obtain your certificate, you will need to make sure that your tax returns are up to date. Ideally, the property should be in the same name as your name with the ATO (but we can help you sort these issues out).

    If you are acting as a trustee or the executor of an estate, you should obtain the certificate using your personal tax file number, even if the estate or trust has its own TFN.

    What if I don’t live in Australia?

    Unfortunately, even if you’re an Australian citizen, if you’re not an Australian resident for tax purposes, you may still need to have an amount withheld. 

    Does everyone on the title or selling the property need a clearance certificate?

    Yes, or else funds will still be withheld.

    Who can make the application?

    Your solicitor or accountant is able to complete the application on your behalf. If you are using a conveyancer, they are able to assist you by lodging your application online from the signed paper form that you provide to them.

    Where can I get more information?

    The ATO website has more information about Foreign Resident Capital Gains Withholding, however if you would like advice on your specific circumstances, please feel free to contact us.

    The information in this post is correct at the time of publishing, but should not be treated as legal advice.

  • Uncategorized

    The importance of contracts

    Hand signing contracts

    Small businesses often decide not to have their own contracts drafted. The common reasons we hear are the cost of drafting a contract, the time involved, and not wanting to deal with lawyers. This isn’t an issue while their business relationships are working smoothly, but it does become a problem when things start to go wrong.

    The cost of preparing a contract is often a small price to pay compared to the costs when things go wrong, and if things go badly wrong, you’ll be spending far more time resolving the issues, and dealing with lawyers a lot more than if there had been a good contract in place.

    Even if someone else has provided you with a contract, it can be well worth spending the money to have a lawyer look over it and advise you on any issues with the contract. Contracts drafted by the other party’s lawyers are generally drafted only with the other party’s interests considered, so they are usually quite one-sided.

    A few contracts that you should consider (or consider having looked over) for your business:

    • Shareholder agreements. If you have more than one shareholder, you should consider whether the shareholders are protected legally, and what is to happen if and when someone wants to get out of the business, if the business is to be sold, if someone passes away, etc.
    • Lease. Particularly for commercial leases, but also for retail leases, you should have a lawyer look over your lease to ensure that you are agreeing to what you think you’re agreeing to, and there are no nasty surprises hidden in the pages of documentation.
    • Supply contracts. If you are supplying goods to others as a wholesaler/manufacturer or in any situation other than retail (and sometimes even then), you should ensure that you have a contract that covers what each party expects of the other. If you’re receiving goods from a wholesaler, it’s equally important to ensure that this contract covers you as well as the wholesaler.
    • Terms and conditions. You don’t want to be legally liable for something on your website if you could have avoided the whole problem simply by having terms and conditions. You also don’t want people being able to take your hard work and re-use it because of poorly-worded or non-existent terms and conditions.
    • Intellectual property contracts. These cover many different aspects of your business – who owns copyright for employee work, licensing other businesses and people to use your copyright materials and trade marks, etc.
    • Privacy policy. This should cover both customers and employees, and let them know how you will be dealing with their private data.
    We can assist you with your business contracts, and offer fixed fee pricing for most services. We understand every business has different needs, for some a straightforward template is enough, and others need a more bespoke solution. We would be happy to discuss which solution is appropriate for you. Contact us on (02) 9844 5430 or book a free online video chat or phone call using the link in the menu.
  • Uncategorized

    Before you enter into a new retail lease in NSW

    Open shop sign

    Entering into a new retail lease is a big step, particularly during COVID-19. There are a number of things to think about:

    1. Is it a retail lease or a commercial lease? As a tenant, you have much better protection under a retail lease rather than a commercial lease. This is an important difference, and you should seek legal advice before entering into the lease to ensure that your business is correctly categorised, rather than having to deal with the issue later.
    2. An agent is not allowed to show you a property without a lessor’s disclosure statement and draft lease available for you to view. If you are interested in the property, you should ask the agent for copies of these documents before you make an offer. Agents are not required to have these documents for commercial lease properties, only retail lease properties.
    3. If this is your first lease, make sure you have considered not only your initial rent, but the amount by which your rent will increase each year. You should also check whether GST is payable on top of the rental amount.
    4. Check whether outgoings are included in the rent. If you are paying them separately, they should be listed in the lessor’s disclosure statement from the agent.
    5. Do you know exactly what you’re leasing? Are there any car spaces included in the lease, or will you have to arrange your own parking? Is there a separate storage area included in the lease?
    6. What facilities are included? Do you have to pay separately for services like cleaning? Will the landlord arrange for waste disposal, or is that your responsibility?
    7. Landlords generally require some security by way of a bank guarantee or cash security deposit. If the tenant is a company, they will often also request that the directors of the company personally guarantee performance of the tenant’s obligations under the lease.
    8. Check whether the landlord is offering any incentives to enter into a lease. This may be something like a rent-free period for you to complete your fitout, or a financial contribution towards your fitout.
    9. At the end of the lease, you will generally have to “make good” the premises. The extent of these obligations will be set out in the lease, and you should ensure that these requirements are not onerous before you sign the lease.
    10. If you do not meet your obligations under the lease, the landlord will have rights against you. You should ensure you are fully aware of what might happen if you are unable to pay rent for any reason.

    Your rights and obligations are set out in the lease and in the Retail Leases Act (NSW) 1994, as well as any applicable regulations. Generally, the legislation will override the terms of the lease. You should ensure you receive detailed advice, and negotiate the terms of your lease, before you sign anything at all.

    If you’d like some assistance reviewing your lease, feel free to contact us for advice.

    Please note, information above is general only and is not legal advice.