PPSR CRITICAL DEADLINE - A MUST READ! TIME TO TRANSITION

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PPSR CRITICAL DEADLINE - A MUST READ! TIME TO TRANSITION

PPSR REGISTRATION – 31 JANUARY 2017 DEADLINE

By Kristy Mantzanidis (Solicitor Mahons Lawyers)

The Personal Property Securities Register (PPSR) commenced in January 2012. Security interests on more than 35 registers were migrated to the PPSR in accordance with the Personal Property Securities Act (PPSA) 2012. Transitional provisions allowed pre-existing security interests such as Australian Security and Investment Commission (ASIC) fixed and floating charges to be migrated across to the PPSR.

There are many additional fields in the new PPSR however that the previous registers did not contain. Importantly, there was a five year grace period to complete and amend any defects in the migrated registrations and this five year grace period to amend security details and ensure that each security interest is complete and correct expires on Tuesday January 31, 2017.

It is critical that if you are the holder of a security interest that migrated to the PPSR you check to ensure the migration was done and is complete by this deadline as any security interests that are not corrected by this date may lose their priority.

If you require any assistance with checking or updating your security interest please contact Kristy Mantzanidis of this office on 03 8877 6888.

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Immunisations and the law

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Immunisations and the law

Infectious diseases are responsible for millions of deaths every year all over the world. Fortunately, through improvements in medical science, the vaccination of young children has provided an extremely effective way of protecting one of the most at-risk groups from a huge variety of diseases- including whooping cough, smallpox, polio and mumps.

Over the last 50 years, advances in medicine which have increased the effectiveness and safety of vaccines, as well as a more rigorous legal framework at both the federal and state government level that requires children to be immunised, have ensured that over 92% of children aged 5 years of age or older are now ‘fully immunised.’ The concerted vaccination effort all around the world has been so successful that a disease such as smallpox, which killed over 300 million people in the 20th century alone, now only exists in the lab.

In an effort to further increase the numbers of children that are ‘fully immunised’ or up-to-date with their vaccinations, federal and state government have recently enacted legislation to effectively compel parents to have their children immunised. The legislation, which since 1988 has required parents to follow immunisation schedules for their children, has been further broadened to include ‘no jab, no play’ provisions – which are intended to protect the community and individual children from families that choose to take the risk of avoiding vaccination. These provisions are particularly onerous on both the parents and children of families that do not follow the schedule of immunisation.

Changes to the Victorian Law

In Victoria, some of the most drastic measures, implemented by both the federal and state governments include:

·      Removing the ‘conscientious objection’ to immunisation. Effectively, families could previously object to having their children immunised on moral grounds. As there is little medical research or public policy supporting any moral ground to object to immunisation, this particular objection has been removed as a valid reason for not vaccinating one’s children.

·      Removing the ‘religious grounds objection’ to immunisation on the same grounds as above.

·      Parents who do not immunise their children in line with the legislated schedule will not be able to claim the Child Care Benefit (CCB), Child Care Rebate (CCR) or Family Tax Benefit Part A payments from the federal government. This is the case unless the parents can show a valid medical reason for why their child cannot be immunised.

·      Prohibiting children that are unvaccinated from enrolling in childcare centres. This includes kindergarten, family day care, occasional care and long day care, but does not include primary or secondary schools, after care services (in schools), or casual occasional care services (such as at a gym or shopping centre.) Children may only continue to be enrolled in these services if they fall under a medical exemption, are classified as belonging to a disadvantaged group or are undergoing a vaccination catch-up.

Conclusion

Vaccination laws are being tightened to ensure children are safe from preventable diseases that have caused millions of deaths in the past. There are severe consequences for parents that choose to continue failing to vaccinate their children, and these can put their children at a significant disadvantage through their early lives, without even taking into account the risk posed to the child's health. If you have any questions about this article or would like to talk with a lawyer, please get in contact with us on 03 8877 6888.

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.

 

 

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Buying Property "Off the Plan" - Part 2

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Buying Property "Off the Plan" - Part 2

As discussed in Part 1 of this article, buying a property “Off the Plan” is the purchase of a property before its completion. With regard to the numerous disadvantages often associated with buying “Off the Plan” as detailed in Part 1, why is it still such a common way for property to be purchased? Why are record numbers of apartments being purchased “Off the Plan”, what are the advantages and how do you know if it is the right option for you?

The advantages of buying “Off the Plan”

There are a number of extremely appealing advantages for the purchaser when buying a property “Off the Plan.” These include:

  • Lock in the (potentially discounted) price. One of the main advantages of purchasing “Off the Plan” is that the purchaser will be paying the current market value for the property. This presents dual advantages. Firstly, the purchaser knows the exact amount of money they are paying years before they need to pay it- leaving time to organize how to best finance of the property. Secondly, in the event that the property market rises in value over the time it takes for the property to be completed, the property will be worth more than was paid for it by the time it is completed- but the purchaser will still pay the original purchase price. (However, if the inverse occurs and the property market falls, the property may be worth less than the original purchase price, and the purchaser will still have to pay the full amount.)
  • A small initial outlay for a high value asset. While a deposit (usually of around 10% of the full purchase price) needs to be paid to secure the property, the full balance of the purchase price does not need to be paid until the property has been completed. This allows purchasers to save money for a longer period, thereby reducing the amount they must borrow under a mortgage, as well as giving them a longer period of time to shop around for a mortgage that suits them best.
  • Tax advantages. In many states (including Victoria) there are significant tax advantages when purchasing “Off the Plan” as compared to purchasing an already completed dwelling. As well as a significant reduction in the amount of payable stamp duty, purchasers may be able to receive tax deductions for the depreciation of fixtures and fittings within the property – however this needs to be assessed on a case-by-case basis
  • Builder warranties and guarantees. All newly completed dwellings in Australia are subject to warranties and guarantees that protect the purchaser against defects in the structure of the premises. In the event that a property purchased “Off the Plan” has any structural faults, it is the obligation of the builder to repair them.
  • Customisation. When purchasing a property that has already been completed or lived in, the purchaser will generally have to accept the property ‘as is.’ Many “Off the Plan” properties offer a far higher degree of customisation, including allowing the purchaser to alter colour schemes, the fixtures and fittings, the finishes and the layouts that will make up the completed property. However, it is important to note that the purchaser’s rights in this regard will be limited by the contract.

 

Conclusion

As can be seen over the two parts of this article, purchasing a property “Off the Plan” is subject to some fantastic benefits, and some large risks. Determining whether this is the correct option for any particular purchaser is largely dependent upon their individual situation, as well as their appetite for risk. No two “Off the Plan” developments are exactly the same, and many factors, including the reputation of the developer, the current state of the property market, the level of detail in the contract and any protections available to the purchaser are all essential considerations in determining whether a purchaser should go ahead with purchasing “Off the Plan.” Due to the complexity of the contracts involved and the large amounts of money that can be at stake, it is essential to seek legal advice before moving forward with an “Off the Plan” purchase. If you are considering purchasing a property “Off the Plan”, or have any questions about this article, please get in contact with us on 03 8877 6888.

 

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.

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Buying Property "Off the Plan"

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Buying Property "Off the Plan"

Buying an “Off the Plan” property simply means buying a house, unit or apartment before it has been constructed. In recent times there has been a huge increase in the number of “Off the Plan” purchases due to skyrocketing numbers of apartments being built in Australia’s capital cities, combined with a favorable tax environment when buying “Off the Plan” as compared to purchasing an already completed dwelling. Part 1 of this article will deal with the risks of purchasing a property “Off the Plan,” while Part 2 will focus on some of the advantages of doing so.  So what are the major risks of buying “Off the Plan” and what should you do if you want to move forward with this option?

 

The risks when buying ‘Off the Plan”

There are a number of significant risks that are taken on by the purchaser when buying property “Off the Plan.” These include:

  • The final product is unknown. Despite the substantial detail that is usually contained within an “Off the Plan” sales contract, there is still a large degree of ambiguity surrounding precisely what the finished property will be like. Some of this ambiguity is born out of necessity (ie. flexibility to change certain aspects of the design in the event of a local council rejecting some features of the property,) while on other occasions purchasers may simply be disappointed by the quality of the fixtures and fittings within the property or they are not how the purchasers imagined they would be.

  • There is potential for large delays. Anyone who has had involvement in the construction of property will know that it can often be subject to lengthy delays, due to the complexity of the projects and large amount of parties and stakeholders involved. As a purchaser of a property “Off the Plan,” the exact date that the property will be completed can vary across years. Compounding this issue, the balance of the purchase price (ie. the full price less the deposit) becomes due once the property is completed. Changing market conditions including lending practices, property prices and the legal landscape can all contribute to a situation in which quickly acquiring the necessary finance for the property may be difficult.

  • The developer may go bankrupt. With an “Off the Plan” property, the developer is usually incurring huge costs without the possibility of recouping them for many years. If unexpected delays occur, there is a very real possibility that the project could fall through altogether, putting the purchasers’ deposit (and time) at risk.

  • Complex contracts. Due to the level of detail that is required in an “Off the Plan” sales contract, the contracts can often be extremely complicated and voluminous. This complexity can often create a situation in which the average buyer may overlook crucial clauses regarding the treatment of defects in the property, cancellation of the contract or rights of the owners after completion, which may be buried deep within the fine print.

  • Subdivided lots. In the case of purchasing a property from a subdivided apartment complex, Issues often arise in which purchasers are not fully aware of their rights as compared to other Lot owners in the same development (ie. exclusive use of some common areas only for certain Lot owners or unequal voting rights at Owners Corporation meetings.) Most people would assume that they have equal rights in making decisions and using common facilities, but unfortunately this is not always the case.

 

Conclusion

As can be seen above, the devil is in the detail when it comes to purchasing property “Off the Plan.” Buying “Off the Plan” has some significant disadvantages compared to a traditional purchase of a completed dwelling. While it is impossible to mitigate all of the risks when purchasing “Off the Plan,” seeking legal advice before signing a contract is an essential step in minimizing the risks that you are exposed to. Nevertheless, buying “Off the Plan” does also present some advantages as compared to the traditional method of purchasing property; these will be discussed in the second part of this article. If you are considering purchasing a property “Off the Plan”, or have any questions about this article, please get in contact with us on 03 8877 6888.

 

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.

 

 

 

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How can a will be challenged?

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How can a will be challenged?

In Parts 1 and 2 of this article we discussed the vital importance of making a will, and some of the key information that you may wish to include in your will. In Part 3, we will be exploring some of the most common ways that a will may be challenged, with a particular focus on recent legislative changes to what are known as Part IV applications.

How can a will be challenged?

There are two differing ways in which wills are usually challenged. Firstly, it can be argued that the will is not valid. If this is the case, it is usually for one of the following reasons:

  • The deceased party was unduly influenced by another party when making their will;
  • The deceased party didn’t sign their will;
  • The will was tampered with or not executed properly;
  • The deceased did not have the mental capacity to understand their will;
  • The deceased did not know the contents of their will;
  • There was a subsequent will made that invalidated the first or a dispute as to which is the most current will.

 

While popular culture suggests most will challenges fall under one of the above categories, as with many things that you see on television or read in a novel, this is actually a misrepresentation of the reality. The vast majority of challenges to a deceased individual’s will are made under what is known as a ‘Testator’s Family Maintenance’ claim (or a Part IV application). This generally occurs when when the will itself is valid, but an individual who believes they were dependent upon the deceased party (before their death) then claims that they have not been provided adequate provision under the will, and seeks a greater share of the estate.

 

Testator’s Family Maintenance claims

Until recently, Part IV of the Administration & Probate Act 1958 (Vic) was the sole legislation that governed the process by which an individual could effectively appeal against their share of assets (or lack thereof) under a will. By pursuing a ‘Testator’s Family Maintenance’ claim, the claimant can apply to have the Court grant them a greater share of the assets from the estate. The legislation was roundly criticized for being too broad in scope, allowing anyone to make a claim that could show the deceased individual had “a responsibility to provide for his or her maintenance and support.” This meant that cousins, siblings, friends, parents and even nieces and nephews could all challenge for a greater share of the estate. Due to the legislation not being targeted towards any particular class of individuals, there were a large number of frivolous claims by fringe relations of the deceased. This had the effect of clogging up the Courts with Part IV applications, and also had a detrimental effect on the intended beneficiaries to the estate, as considerable chunks from the asset pool were eaten away by legal proceedings.

In order to address this issue (among others), the Justice Legislation (Succession and Surrogacy) Act 2014 (Vic) was drafted and brought into operation in 2015. Under the new legislation, only the following claimants may bring a Testator’s Family Maintenance claim:

  • A domestic partner or spouse of the deceased at the time of the deceased’s death; or
  • A child (including adopted or step child) of the deceased, if they-
    • Are under 18 years of age;
    • Have a disability;
    • Are between 18 and 25 and studying full-time; or
  • A spouse or domestic partner of a child of the deceased; or
  • A former spouse or domestic partner of the deceased (if a property settlement has not been reached at the time of death); or
  • A grandchild of the deceased; or
  • A member of the household of the deceased (including in the past or would have been in the near future); or
  • A registered caring partner of the deceased; or
  • A person who has been treated as (and believed they were) a natural child of the deceased.

As can be seen from this list, there are still a substantial number of categories in which one may apply for further provision under a Testator’s Family Maintenance claim, but the more restrictive nature of the updated legislation has resulted in less frivolous claims being pursued. Furthermore, the new legislation included some additional factors that may be considered by the Court when deciding a Testator’s Maintenance Claim.

 

The factors that will be considered by the Court in considering a TFM claim

Whether or not the Court will find that the deceased had a ‘responsibility’ to provide for the claimant is subject to a number of factors, including:

  • Whether the deceased had a moral duty to provide for the claimant. This takes into account the contents of the deceased’s will, past interaction between the claimant and the deceased, and any other evidence regarding the deceased’s intentions of provision for the claimant;
  • Whether the estate has already made adequate provision for the claimant;
  • Whether the claimant is capable of providing for himself or herself;
  • The effect the claim will have on other beneficiaries under the will.

Ultimately, while the Court usually follows the above considerations, it should be noted that the updated legislation has also allowed for complete discretion on how much weight (if any) the Court places upon any of the above factors.

 

Do the recent changes to the law apply to my will?

The changes to Testator’s Family Maintenance claims came into effect on 1 January 2015. Accordingly, the TFM provisions apply to every individual who dies after this date.

 

Conclusion

The recent updates to the legislation governing Part IV applications have served to limit the classes of people that can make a Testator’s Family Maintenance claim, but have given the Court a wider discretion to weight the factors they deem of importance in determining a claim. Therefore, it is of particular importance that individuals creating a will keep in mind how these laws are intended to operate, particularly in the event that an individual is considering leaving someone out of their will that would fall into one of the classes detailed above. It is also increases the importance of including as much detail as possible in an individual’s will with regard to his or her reasoning (ie, why they are choosing to leave more of their estate to one child rather than another.)

If you would like to make a will, feel you have been underprovided for in a will, would like to make a Testator’s Family Maintenance claim or have any questions about this article, please get in contact with us on 03 8877 6888. 

To read Part 1 of this article for more general information about why it is essential to have a will, click http://www.mahons.com.au/news/2016/5/11/wills-part-1

To read Part 2 of this article for some guidance on what should be included in a will, click http://www.mahons.com.au/news/2016/5/12/what-information-do-i-need-to-put-into-my-will 

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.

 

 

 

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