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31/08/2011 - Civil Dispute Resolution Act 2011

The 1^st August 2011 not only brings about changes to Transfer Duty Rates and the addition of a $10,000 Building Boost (see below), but also the commencement of the Civil Dispute Resolution Act 2011 (Cth) (“CDR Act”).

The Act encourages parties to disputes to take “genuine steps” to resolve their disputes before commencing proceedings in court.

The costs of commencing proceedings in the Federal Court or the Federal Magistrates Court is often a barrier to justice, which this act aims to resolve. Also, the Act aims to result in faster and more effective dispute resolution.

What are genuine steps?

Genuine steps are sincere and genuine attempts to resolve the dispute in the relevant circumstances.

The CDR Act does not mandate specific steps for prospective litigants to take to attempt to resolve disputes and therefore allows the parties to a dispute to consider what measures may be appropriate in their specific circumstances.

The following are examples of genuine steps which parties to potential litigation may consider:

1. Identifying the issues in dispute and discussing them with the other party

2. Furnishing the other party with information which will assist with clarifying the first party’s position

3. Investigating alternative dispute resolution options

4. Attempting to settle the dispute via negotiation

The CDR Act requires both parties to file a Genuine Steps statement, detailing the steps taken and, if none were taken, why. Failure to file a genuine steps statement is taken into consideration by the Court including when awarding costs, but does not prevent proceedings commencing.

How can Kelly Lawyers help?

If you are currently in a dispute of any kind please contact Kelly Lawyers to learn how/ if the Act applies to you or how to file your genuine steps statement.

The 2011-2012 Queensland State Budget presents a $10,000 Building Boost Grant running from the 1^st August 2011 until the 31^st January 2012. The grant applies to:

·         any person, corporation or trust;

·         buying or building a new home;

·         to live in or as an investment;

·         within Queensland (but not restricted to Queensland residents); and

·         worth no more than $600,000 for the value of the land and improvement.

The $7,000 First Home Owner Grant remains unaffected by the $10,000 Building Boost and so first home buyers may meet eligibility criteria for both initiatives.

A new home is one which has not been previously occupied or sold as a place of residence or is a substantially renovated home.

A substantially renovated home is one that as renovated has not been occupied or sold as a place of residence. For example a home purchased from a builder/developer who has completely restored the home.

In contracts to purchase a new home, both the consideration for the purchase of the property and the actual value of the property (including the land) must be less than $600,000.

When contracting to purchase a new home off the plan construction must be completed by the 31^st July 2013.

When contracting to have a home built the sum of the consideration for the building work and the value of the land must be less than $600,000.

Building must start within 26 weeks of the date of the contract and be completed within 18 months.

In the case of owner builders, the sum of the actual costs to owner (not including the owner’s own labour) and the value of the land must be less than $600,000.

Building work must be completed within 18 months of work starting.

In order to obtain the grant the house must be occupied. It is irrelevant who it is occupied by, but it must have residential use.

For example, the property may be used by a relative or rented.

With the property market and real estate values in a current state of flux, the $10,000 Building Boost has made it more affordable than ever for first home buyers and experienced investors alike to build new homes.

Given the ever increasing population of South East Queensland, the $10,000 Building Boost aims to offer an incentive for Queensland property owners to construct new properties to ease the housing shortage on this rapidly growing region.

Kelly Lawyer’s conveyancing team are able to assess your personal circumstances to determine whether you are eligible for the $10,000 Building Boost. For eligible clients, Kelly Lawyers will work with you to ensure that all eligibility criteria are satisfied to maximise your entitlements. To find out more information, please contact our friendly staff to arrange an appointment.

Fair Work Australia has published its Annual Wage Review Decision (“the Decision”)[1]. The Decision has resulted in increases in the minimum weekly wages and hourly rates prescribed by a number of Modern Awards and also the National Minimum Wage (which applies to award-fee employees). The Decision affects all employers who are covered by the federal industrial relations regime, including all Queensland employers since January 2010, and means that many employers must conduct a review of their employees’ wages to ensure that they remain compliant with federal industrial relations law.

Fair Work Australia has decided that, in light of the strength of Australia’s economy and various inflationary figures, a substantial pay increase is in order. As such, as of 1 July 2011, all Modern Award rates are to be subject to an increase of 3.4%. In addition, the Federal Minimum Wage, which is based upon the C14 Classification of the Manufacturing and Associated Industries and Occupations Award 2010[2], has been increased to $15.51 per hour (or $589.30 per week). A copy of the fill decision (108 pages) can be accessed via the following link:

http://www.fwa.gov.au/sites/wagereview2011/decisions/2011fwafb3400.pdf 

Employers who pay employees the Federal Minimum Wage or whose enterprises are covered by Modern Awards should immediately conduct a review of their employees’ remuneration to ensure their compliance with the applicable prescribed rates. Employers who fail to do so, and do not sufficiently remunerate their employees as a result, will be required to “back pay” entitlements to affected employees  and may be penalised in certain circumstances.

Kelly Lawyers has experience in drafting and reviewing employment contracts and agreements and also in negotiating commercial outcomes in unfair dismissal matters and other workplace disputes. If you are an employer who requires assistance in determining or complying with your minimum obligations, or if you are an employee who is being underpaid, please contact Greg Kelly to find out how Kelly Lawyers can assist you.

[1] [2010] FWAFB 3400

[2] MA000010

11/07/2011 - Super Trustees Ignoring the Wishes of the Dead 

Recently, there are cases where trustees of superannuation funds are overturning the wishes of deceased policy holders, ignoring written instructions in Wills and giving away millions of dollars in death benefits to people who claim they are entitled to the money.

It is important to note, as verified by SCT chairwoman Jocelyn Furlan that when people nominated a person to receive their death benefit, this was not binding on the super funds’ trustees and the trustees should also make sure people were aware of this when signing up to a fund.

Further, superannuation is not a “gift” to be handed out at Will as it is not part of a person’s estate.

Chris Kenney, the director of wealth advisory firm William Buck said that even “binding nominations” which purport to bind a super fund trustee to follow a person’s wishes were not necessarily binding as super funds had the discretion to apportion death benefits as they saw fit to dependants, which includes anyone who was financially dependant on the fund member or to pay the money to the legal personal representative on behalf of the person’s estate.

As a result of recent legislation changes, it is now less clear what types of relationships are intended to be caught by the term “interdependency relationship”.

In one recent dispute in the Superannuation Complaints Tribunal, a father was outraged to discover his dead son’s $300,000 death benefit was to be given to a man who said he was the dead man’s partner and was financially reliant on him. The father claimed that he had met his son’s gay partner before but this man was merely his son’s housemate. The super fund disagreed and a subsequent complaint to the Tribunal was rejected.

Another man specifically wrote in his Will that his super should form part of this estate, for the benefit of his children. His wishes were rejected and the money given to his de facto wife.

As Australians wealth will increasingly be held in Superannuation Trusts we believe that disputes in relation to the payment of death benefits will unfortunately be on the increase.

Contact us to find out more or to arrange an appointment.