December 2016- Family provision applications

Pursuant to the Succession Act (1981) QLD, a person can make a family provision application for further and better provision of a loved ones will. To be successful in this application, the person who is making the application must:

1. Have lodged the application within 9 months of their loved ones death;
2. Are a dependent of the person who died (i.e child, spouse, step child, de facto or de facto step child);
3. Have a real need for the money.

If you would like to know more about Family Provision Applications, contact GLR Law to make an appointment.

August 2016 - Pallative care of loved relatives (wills and estates)

Any client who has a loved one in pallative care knows the horrible, yet sometimes essential, task of pallative care workers in providing pain medication and sedation.  Clients often ask "what is the criminal ramifications and/or guidelines in terms of providing this pain releif/sedation and/or can I sue the hospital and/or pallative care worker (for not providing what the client considers appropriate treatment)".  In Queensland a lawful excuse is provided to health professionals through section 282A of the Criminal Code.  This section provides protection if the pallative care is given in good faith and with reasonable care and skill and is reasonable in the context of good medical practice

July 2016 article - child welfare applications by interested third parties

In Director Clinical Service, Child & Adolescent Health Service v Kiszko & Anor [2016] FCWA 19 and 34 the Family Court of Western Australia has ordered that a child undertake chemotherapy to treat a rare form of cancer, contrary to the parent's wishes. The hospital had brought the application, as it was concerned for the welfare of the child. The parents had refused to allow chemotherapy and radiotherapy as they were concerned about the quality of life it would provide to the child. Ultimately the Court ordered chemotherapy, but agreed with the parents regarding radiotherapy. Although not common, and despite the slight differences in legislation between Western Australia and the rest of the States, it will be interesting to see whether, given the recent media attention on the Western Australian case, there is an increase in these types of applications before the court.

May 2016 article - paper titles

In Queensland when you buy or sell a property paper titles are generally not generated.  Paper titles have essentially been "outdated" in favour of an electronic system and, as such, you will not be issued a paper title when you buy a property. 

Despite this, there are instances where a paper title is issued, particularly if the seller purchased the property a long time ago (or a specific request is made for a paper title to be issued).  If a paper title has been issued, it is extremely important that the paper title is located prior to settlement (it will need to be exchanged with the purchaser on settlement).  If the paper title is lost, it can take 4-6 weeks to sort out the issue, as an application needs to be made to land titles to dispense with the issued paper title.  This could mean settlement is delayed or, even worse, the purchaser may terminate the sale contract.

All GLR Law conveyancing clients are urged to advise GLR Law immediately if a paper title has been issued.

March 2016  article - -Why you need a Power of Attorney and/or Advance Health Directive

Most people are aware of the need to have valid will executed so that their final wishes are respected.  What most people are not aware of, is the importance of a Power of Attorney and Advance Health Directive.  GLR Law considers a Power of Attorney and Advance Health Directive even more important than a will.

A Power of Attorney is a document that allows you to appoint a trusted person (i.e friend, family, spouse etc) to make health and/or financial decisions under certain circumstances (i.e you can choose whether it is applies immediately or if you lose capacity for example).  The importance of a Power of Attorney lies in the fact that if you are a young person and, through unfortunate circumstances lose capacity, the Power of Attorney (if executed properly) will give your chosen "trusted person" control over health decisions (i.e turning off life support) and financial decisions (i.e if you can no longer make financial decisions in your own right).

An Advance Health Directive is a document in which detailed instructions are provided for what your wishes are in relation to a range of health issues.  This document can direct that you do not want to be resuscitated, for example, if you go into cardiac arrest.  Both a lawyer and doctor are involved in the execution of this document.

Make an appointment with one of GLR Law's lawyers today to discuss your Power of Attorney and Advance Health Directive.

February 2016 article - Statutory Demands and registered offices

If your business has been incorporated (i.e is a pty ltd company) you will have details of your business (such as the Directors and registered office of your business) registered with the Australian Securities and Investment Commission ("ASIC").  The ASIC records are searchable, and creditors will often serve (i.e send) documents on your registered office using this information. 

If your company is served with a statutory demand (a formal demand for payment of an alleged debt which, if not responded to strictly within 21 days, means your company is "deemed" insolvent and is liable to being wound up), serious consequences can occur if you do not deal with the statutory demand properly.  A large proportion of statutory demands are served on a company's resgistered office and, if ignored , could mean your company is wound up. 

GLR Law recommends that all clients check their company's ASIC record, and ensure that they are aware of where the company's registered office is (which can be different from the office where the business actually operates out of).  Equally, clients should ensure that adequate procedures are in place to check for mail at the registered office. 

If you do happen to receive a statutory demand, please contact GLR Law as soon as possible if you want to have it "set aside" (i.e declared void).  The 21 day time limit to respond to statutory demands is strict, and if let lapse your company could be at real threat of being wound up.

January 2016 article - QCAT costs

Costs are extremely difficult to obtain in QCAT, with the general rule being that each party to a QCAT proceeding bears its own costs.  Despite this, section 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QLD) does state that:

 "The tribunal may make an order requiriing a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the trbunal considers the interests of justice require it to make the order"

In Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015], the Queensland Court of Appeal refused Donovan Hill's Application for leave to appeal against the decision of the Appeal Tribunal of QCAT.  The Appeal Tribunal determined that QCAT had no power in exercising its' review jurisdiction to award costs to entities like Donovan Hill (which were non parties in a review proceedings).  In line with this decision, clients are reminded that costs are unlikely to be awarded to non parties in QCAT proceedings.

November 2015 article - Restraint of Trade Clauses

Many employers, in an effort to protect their business, have restraint of trade/restrictive covenants in their employment agreements with their employees ("restraint clauses").  The general rule with restraint clauses is that they are presumed to be void for reasons of public policy unless they are reasonably necessary to protect the legitimate business interest of the party seeking to rely on that clause. 

A restraint clause will generally only be considered reasonable if:

1. The employer has a legitimate interest requiring protection;
2. The restriction is:
    (a) Limited to the employer's interest;
    (b) For a period no longer than necessary for the protection of that interest; and
    (c) Limited to a geographical area no larger than necessary for the protection of the relevant interest.

GLR Law is able to assist any business owner who has concerns regarding whether their restraint clauses are reasonable by:

1. Reviewing their employment agreements; and
2. Redrafting the restraint clauses if necessary.