Litigation Lawyer
Joining us is your chance to make your mark, working with a diverse group of people that is united in delivering excellent service to our broad range of clients.
We are looking for someone who has a sound knowledge and practical skills across all aspects of Commercial Litigation, including –
• Building and Construction Law including BIF Act procedures
• General litigation
• Estate Litigation and Disputes
• Insolvency matters
• Contractual and trade practices disputes
• Planning and Environment
• Debt Recovery
If you have experience in these areas, and have at least 5 years PAE experience we would like to hear from you.
Applicants will need to demonstrate they are capable of:
• Carriage of multiple litigation matters from start to finish
• Building and maintaining client relationships
• Strong technical, negotiation and communication skills
• Drafting and negotiating business agreements and other commercial litigation documents with accuracy and attention to detail
• Complex legal issue management with experience in dispute resolution with a confident and measured commercial approach
• Able to work autonomously and in a team environment
• Resilience and ability to work under pressure
• Solid leadership, coaching, teamwork and mentoring skills
• Business Development Activities
How to apply
Please apply via our website.
Applications are to be addressed to the Litigation Director and should include a current curriculum vitae and cover letter that outlines how you meet the role requirements.
Avoiding Complications with Party Identity and Planning Appeals
We often see Court proceedings being conducted in the name of the development consultant, either as the Appellant or Co-Respondent, instead of the client. In our opinion, this isn’t a good situation for either the development consultant or the client because of the adverse consequences that might follow.
Situations in which the consultant is named as a party to Court proceedings invariably results from the consultant being named as the applicant in the original development application. Consequently, the resulting Appeal commences in the WC’s name because an Appeal must be commenced in the applicant’s name.
While good publicity for the consultant, there are several problems that can arise when the development consultant lodges an application in its name rather than the client’s name.
In addition to the public relations value, consultants usually see an advantage in lodging an application in their name so that they maintain both control and communication over the application process. And, more importantly, this also leaves the client dependent on the consultant, giving the consultant considerable leverage regarding fees and payments.
However, disadvantages can easily arise in the event of a breakdown of the consultant-client relationship. Especially when it reaches the point where the consultant wants to extricate itself from the application process. This includes situations such as the client refusing to pay Council fees or the consultant’s fees, or if they have unrealistic expectations of either the consultant or the assessment manager.
This can place the consultant in the difficult position of trying to distance itself from the client and their dealings with the assessment manager, referral agencies and other consultants, including lawyers, conveyancers and other professionals.
However, it’s also important to see things from the client’s perspective and understand that there are often negative situations in which they may find themselves. For example, a client may find themselves in a situation where the consultant goes off the rails and refuses to allow its name to be used in progressing the development application or Court proceedings.
Situations like this are further compounded if the development application is heading to an Appeal in the P&E Court. We’ve had situations in which the consultant wants no part of the Appeal proceedings (either an applicant Appeal or a Submitter Appeal) but is obliged to be named as a party because they’re named as the applicant for the development proposal. A similar scenario can arise where a Submission is lodged in the consultant’s name.
While ongoing concerns over potential adverse cost orders have mostly been eliminated in the Planning Act, there’s always the potential for a consultant to be ordered to pay an adverse costs order because the client has conducted Appeal proceedings frivolously. Despite a likely right of indemnity against the client for such a costs order, the better course of action is to do whatever possible to avoid such a situation arising in the first place.
Ian Neil
Director | Planning + Environment, Litigation
PHONE +61 7 3370 5100
Help – I have a dispute with my builder!
Building or renovating your dream home? While this can be an exciting time, it can also be very stressful. There are several steps you can take in the early stages to help prevent trouble down the track, however, if you are already in dispute with your builder, here are a few things to keep in mind:
1. Know your Contract
Disputes often arise when one or both parties are not completely aware of their obligations under the building contract. If a dispute does arise, review your contract so you understand your obligations. Every contract is different, but all provide for strict time frames for both parties to comply with. For example – time for the build to be completed, calculation of liquidated damages if the build goes over time, time frames for disputing Practical Completion.
2. Communicate clearly with your builder
One you are aware of your obligations under your contract, communicate your concerns clearly with the builder. While it is a difficult time and you are probably feeling stress, remember to keep emotions out of it for the best outcome, and advise the builder of your concerns in a clear and concise way. Keep in mind any time frames that may apply to you under your contract, and ensure you adhere to these time frames, if you do not, you may find that you are holding up processes which may have implications to you.
3. Consider referring the issues to QBCC
If you are unable to resolve the issues with your builder directly, consider using the Dispute Resolution Process available to you through QBCC. This is a free service where QBCC assists homeowners and builders to resolve disputes that arise.
If QBCC are unable to resolve the matter with you, they will provide you a certificate to confirm parties have attempted to resolve the matter. This is a compulsory step prior to commencing proceedings, in QCAT so if you feel that your matter may become litigious, taking a proactive approach is advisable.
4. Commencing proceedings in QCAT
If you are still unable to resolve the issue with your builder, the next step would be to commence proceedings in either QCAT (Queensland Civil and Administrative Tribunal) or the Magistrates Court. QCAT has an unlimited monetary jurisdiction for all residential building disputes. So whether its $500 or $5 million you can choose to commence proceedings in QCAT, if that suits you better than the Magistrates Court.
The QCAT process involves filing and serving an Application, then the builder filing a response. QCAT will then hold a conciliation conference where both parties are given the opportunity to resolve the matter amicably. If a resolution cannot be reached, QCAT will then require both parties to file all of their evidence (witness and expert statements) and list the matter for a hearing.
If you have concerns about how your own build is progressing, it is always best to act early. Melissa Ban is a Building and Construction expert with MDL and WSL’s property and commercial teams, you can get in touch with Mel if you would like to discuss your own situation.
Melissa Ban
Litigation | Building and Construction
PHONE +61 7 3002 7444
MDL at the forefront of electronic conveyancing
At MDL, we understand that Buying or Selling a property whether it is your home or investment property, or a future development site is one of the largest financial transactions that you may make. As such we always strive to ensuring your legal needs are met more cost effectively, faster, safer as well as more efficiently.
Whilst electronic conveyancing (commonly referred to as PEXA due to the completion of matters on the platform of Property Exchange Australia) is not as yet mandatory in Queensland, MDL has ensure that our clients receive the benefits of being able to complete, verify and lodge documents on behalf of buyers and sellers online and complete financial settlements electronically.
The advantages to our clients from using a law firm proficient with electronic conveyancing can be summarised as follows
Faster communication
Anyone who has sat on hold to a service provider like a bank or telephone company knows the delay caused by listening to options to work out which number to push for the next option. Manual settlements, require our staff to communicate with financiers for both sellers and buyers by phone to book settlements, draw cheques, receive payout figures and generally jump the hurdles required by the banks to complete a settlement
With electronic settlements, documents required to speed up your loan approval are uploaded online, communication with the banks is done through an online “conversations” direct to the bank, and the electronic system updates and notifies the parties to each stage the bank is at, including when they have received and processed loan documents and when they are ready to settle a matter.
This streamlined and transparent process means that we can keep our clients informed as to the progress of matters immediately as they move through the process of the conveyance.
Clients are also able to track their transaction with a free settlement app which navigates the process with customised checklists and real-time updates. The app allows us to keep clients informed by SMS or text throughout the settlement process and providing clients with direct access to their transaction.
Safer
Government departments such as the Office of State Revenue and Land Titles Office are linked to the electronic conveyancing, meaning less human error and also checks in place as to documentation being done prior to settlement. Lodgement documents such as transfers and mortgage releases are processed prior to completion of the electronic settlement process to ensure there are no errors in relation to any part of the process. Also any changes to the title prior to settlement are immediately notified to the parties providing safety of unexpected last minute caveats or changes in title details.
Direct electronic lodgements of documents to the Titles Office provides greater assurance and protection for parties that dealings will be registered almost immediately after settlement, avoiding the risk inherent in delays (such as delivery errors, financial issues or hold ups at the Titles Office). Some financiers can take over a month to lodge paper documents after settlement to transfer titles of the property.
Manual conveyancing involves a range of paper documents requiring signatures from both the buyer and seller and reliance on postal delivery and physical meetings to have these documents executed and exchanged. With electronic conveyancing the days of paper documents being lost in the mail or destroyed in transit are a thing of the past.
Efficiencies
Electronic conveyancing also removes the need for bank cheques with mandatory three day clearance waits. Over 80 financial institutions, have all signed on to use PEXA for electronic settlements allowing funds to be transferred online and are processed as cleared funds so sellers have immediate access to the purchase money and buyers save money and time as bank cheques are no longer required.
Settlements can be carried out at anytime during the day. With manual settlements, banks will require settlements be done in the afternoon to allow them time to draw bank cheques and calculate payout figures. With electronic conveyancing, settlements can be carried out at anytime during business hours making it much easier for buyers to organise removalists
Using an online platform allows MDL to complete settlements on the same basis throughout Queensland, transactions such as a re-finance where the parties aren’t physically in the same location., or settlements outside of the Brisbane no long require the appointment of an agent to attend settlement on behalf of a client. Being able to complete settlements online removes geographical barriers and ensures completion of settlement is fast, efficient and certain.
MDL’s property law team are always available to assist you through every step of the conveyancing process and continues to be at the forefront of better provision of legal services to our clients.
Article by Andrew Pye
Director | Property & Commercial Law
MDL and WSL
DIRECT +61 7 3002 7428
EMAIL acp@warlowscott.com.au
BUILDERS & SUBCONTRACTORS | Tips to ensure you are paid
Getting paid in the building industry is sometimes more difficult than winning a job in the first place. In this article John Warlow goes through the best ways for builders and subcontractors to ensure they receive payment.
1. Have clear written agreement on the scope of work and price
(a) Ensure there is a clear scope of work
We frequently see disputes about what work is included (and what is excluded) from the quoted price. Before work starts, make sure you have a written contract which clearly sets out what work you are to perform, and what is outside your scope of work.
(b) Ensure the price and/or rate are clear
Make sure you have clear written agreement before work starts on what the price is, or how the price will be calculated. We often see disputes arising from a lack of clarity about how the amount payable is to be calculated.
2. Ensure there is clear written agreement on variations.
Variations are a frequent source of disputes. Before starting work on a variation, make sure you have a clear written agreement on what extra work is to be performed, and what the additional cost will be.
3. Use the security of payments legislation.
Under the Building Industry Fairness (Security of Payment) Act, if a subcontractor serves a valid invoice on contractor who engaged them, and that contractor doesn’t provide a ‘Payment Schedule’ disputing the claim within the required time (usually 15 business days), then the subcontractor can apply to an adjudicator or a court for an order that the amount claimed be paid.
Significantly, if the contractor who is liable to pay doesn’t deliver a ‘Payment Schedule’ disputing the invoice within the required time (usually 15 business days), then they are unable to dispute the claim in any adjudication process or court proceedings. Savvy subcontractors can use this to their advantage.
Even if the builder does deliver a ‘Payment Schedule’ disputing the invoice, you can ask the QBCC to appoint an independent adjudicator to determine how much is payable. The adjudication process is quicker and usually much cheaper that court or QCAT proceedings. An adjudicator’s decision can be registered in court and enforced as a court order.
4. Use the Subcontractors Charges legislation.
If you are a subcontractor who is concerned that the owner or principal is going to pay the builder, but the builder won’t pay you, you can serve a Notice on the owner or principal claiming a charge over the money payable to the builder.
The Notice claiming the charge obliges the owner or principal to deduct from the amount which they must pay the builder, the amount which the builder is liable to pay you, and pay that amout direct to you or into court instead of paying it to the builder.
This process can be used to ensure that you are paid ahead of most other subcontractors if it appears the builder is in financial difficulty and is unable to pay everyone.
5. Suspend work
If you have not been paid, suspending work may be an option. The threat of work being suspended is often enough to ensure you are next in line for payment.
Both the Building Industry Fairness (Security of Payment) Act and the QBCC Act contain provisions which entitle subcontractors to suspend work in certain circumstances if they have not been paid. Your contract might also give you the right to suspend work. But before suspending work you must give a notice which complies with the legislation warning of your intention to do so.
If you suspend work when you are not legally entitled to do so, you are actually breaching your contract. That breach can give the builder the right to terminate your contract which they may then be able to use as an excuse not to pay you. Consequently we recommend you only suspend work after obtaining legal advice.
6. Complaint to QBCC
If the company liable to pay you holds a QBCC licence, then a ‘Monies Owed’ complaint can be made to the QBCC. The QBCC often takes an active interest in such complaints as the failure to pay subcontractors can indicate a builder doesn’t meet the minimum financial requirements to hold a building licence.
The QBCC form to make a monies owed complaint can be found here. It is usually best to make a complaint to the QBCC before taking other enforcement action. In our experience, once you have taken other steps to enforce payment, the QBCC can be less inclined to take action.
7. Know you rights regarding Retentions
In this short article it is not possible to go into detail about retentions. But some key points to remember are:
(a) The maximum retention that can be held once the subcontractor reaches practical completion of their works is 2.5%.
(b) At least 10 business days before the end of the defects liability period the party holding the Retention must give the subcontractor a notice in the approved form which essentially states when the retention is to be released and in what amount. A failure to comply with this requirement can leave the party holding the retention liable to a fine of up to 100 penalty units (currently $13,345).
(c) A Retention can only be held after the defects liability period expires (which cannot exceed 12 months) if the party holding the Retention has a legitimate claim to the monies. Keeping the retention beyond the defects liability period without have a legitimate reason is an offence which is punishable by up to 200 penalty units (currently $26,690) or one year imprisonment.
(d) Retention monies can only be used to cover particular costs such as rectifying defects or paying costs incurred as a result of delays or a breach of contract by the subcontractor.
(a) If the party holding the Retention plans to use the Retention, they must give written notice of their intention to do so within 28 days of becoming aware that the recourse to the Retention may be needed. That notice must set how much of the Retention they propose to use and for what purpose;
8. Statutory Demand
A Statutory Demand is a formal demand for payment under the Corporations Act which requires a company to do one of three things – either pay the debt referred to in the Demand, show that there is a genuine dispute about the debt, or provide reasonable security for payment of the debt.
Ordinarily the debtor company has 21 days to either pay, show there is a dispute or provide security, failing which you can apply to court to have the company placed into liquidation. The threat of being placed into liquidation is powerful leverage to force a builder to pay you ahead of other subcontractors.
However, during the COVID-19 pandemic, the Government has temporarily changed the period to comply with the Statutory Demand from 21 days to 6 months. Consequently, at this time (mid 2020) a Statutory Demand isn’t a worthwhile option. However in late 2020, when the 6 month period for compliance changes back to 21 days, Statutory Demands will return to being a good option to recover payment.
For more information, or if you are having difficulty getting paid, contact John Warlow on 07 3002 7419 or jpw@warlowscott.com.au. John’s vast experience in building and construction law, and has assisted many builders and subcontractors to ensure they receive payment.
What is a Testamentary Discretion Trust (“TDT”)? Do I need one?
A TDT is a trust which is set up under your will on your death. A TDT allows your estate assets to be held in trust (or trusts) for your nominated beneficiary/ies. It provides a structure to manage and distribute your estate assets.
Who are the parties involved in a TDT?
The TDT has four main parties:-
- You as the willmaker who gifts assets to the TDT under your will. Your estate assets then become the assets of the TDT;
- The trustee of the TDT. This is the day to day controller of the TDT and decides when, in what amounts and to which of the beneficiaries any distributions are made from the trust’s income and capital. The trustee will often be your intended beneficiary of the TDT, or, if your intended beneficiary is at risk or vulnerable, it may be a suitable independent third party who will manage the TDT on their behalf.
- The Appointor or Principal of the TDT. This is the ultimate controller of the TDT and can hire and fire the trustee. It, again, will often be your intended beneficiary of the TDT, of, if your intended beneficiary is at risk or vulnerable, it may be a suitable independent third party who will control the TDT on their behalf.
- The beneficiaries of the TDT. These are the parties who may receive distributions of income or capital from the trust assets (i.e. from your estate assets). These will generally include your intended beneficiary, their spouse, children, other descendants and family members, related companies, trusts, etc.
What are the advantages of a TDT?
A TDT allows control and flexibility to distribute income and capital from your estate, can be used to protect assets for vulnerable or at-risk beneficiaries and also to minimise tax implications for your beneficiaries.
Control and/or Flexibility
A TDT is not owned by a particular beneficiary. The trustee holds the assets of the TDT on trust for the beneficiaries of the TDT and has discretion to determine when and to whom distributions of income and capital are made from the TDT. Therefore, it allows you to leave your estate assets in the control of your intended beneficiary but they may then choose to distribute the income and capital from the trust to themselves, their spouse, their children, their related companies and trusts etc. Therefore, this allows maximum flexibility for your intended beneficiary.
It may also allow you to protect the capital whilst providing only income (or a life interest) for a second spouse or vulnerable or at risk child, depending on the terms of the TDT.
Asset Protection
By transferring your assets to a TDT under your will rather than to beneficiary’s personal name, you may protect your estate assets from your beneficiary/ies’s:-
– external creditors not just at the date of your death but also in the future. This may be helpful if they are in an occupation that carries significant risk of litigation or if they run a business;
– current or previous spouse in the case of a marriage or relationship breakdown, as the TDT may limit the ability of the partner to make a significant claim upon the trust assets*; and
– may also allow you to put in place an independent trustee to manage the funds for a disabled or at-risk beneficiary thereby safeguarding their share of your estate.
Taxation Advantages
A TDT has all the usual taxation advantages of a family or discretionary trust in that the trustee of the trust may choose to stream income to whichever of the beneficiary/ies of the trust it chooses to so as to minimise the overall tax payable on the income of the trust. However, TDTs have a further advantage over family or discretionary trust; under current tax law, TDTs can treat minor beneficiaries (i.e. children under 18) as adults for tax purposes so that they are eligible to receive an amount of income from the TDT equal to the tax-free income threshold without having to pay any tax for the first three years after the date of your death. If your intended beneficiary has one or more children, this may result in a significant taxation saving.
When should a TDT be considered?
If you have significant assets which may form part of your estate on your death and be payable to any beneficiary under your will, then a TDT should be considered.
Further, if any of your beneficiaries may be at risk or vulnerable and you wish to provide some asset protection for their share of your estate, then a TDT should be considered.
Costs of TDTs
Obviously, the cost of a TDT Will is more expensive than a simple will, and, if the TDT is utilised by your intended beneficiary, there will be ongoing administrative costs including accounting fees and tax return costs.
However, the taxation, asset protection and flexibility benefits of a TDT in an appropriate situation are significant.
If you think that you may wish to consider making a TDT Will, or discuss whether it may be appropriate for your circumstances, please contact our office on 07 3370 5100 to discuss.
*Such claims will vary from case to case and specific advices should be obtained in each case.
Article by Sarah Higton
Senior Associate LL.B (Hons), LL.M (Applied Law majoring in Wills and Estates)
DEBT RECOVERY DURING A PANDEMIC
During these unprecedented times, cashflow may be prompting you to act on any outstanding debts owing to you, or that are owed to you. Perhaps you have noticed that clients or customers are slower to pay during their own cashflow problems. Regardless of the situation, if you are wondering what options are available to assist in recovering money so your business can stay afloat, here are some options to consider.
Letter of demand
A letter of demand is almost always the first step to take when trying to recover a debt, and coronavirus has not changed this. In times like these when businesses are struggling, MDL may be able to assist in negotiating a payment plan with your creditors to avoid costly court proceedings and unnecessary legal costs.
Court proceedings
Where a letter of demand fails, the courts are still open and accepting court documents. Some courts are adjourning non-urgent hearings, and some enforcement options have been put on hold, however, most matters are proceeding as usual. We can advise how these changes affect your situation specifically, and whether commencing proceedings is an option for you.
Most importantly, we can assure you that we have processes in place to ensure that we can continue to file court documents and attend court hearings.
Statutory demands
A Statutory Demand is used when a company owes you or your business money, and you believe they have not paid as they may be insolvent. A Statutory Demand should not be used as a standard ‘debt recovery tool’ and should only be sent to a company if you have a genuine belief that they are insolvent.
Usually, the minimum debt owing to warrant a Statutory Demand is $2,000, and a company has 21 days to respond. However, due to the current situation, amendments have been made to legislation to increase the debt amount to $20,000 and companies now have six months to respond to a Statutory Demand.
Bankruptcy notice
Similarly, to Statutory Demands, amendments have been made to legislation to extend the timeframe to respond to a Bankruptcy Notice from 21 days to six months. This means if you serve a bankruptcy notice on someone you have judgment against, you will not be able to make to application to the court to have them declared bankrupt until six months after you serve the notice. Further, the minimum debt owing to institute bankruptcy proceedings has been increased from $5,000 to $20,000.
Sometimes it’s best to wait
At MDL, we want to assist in achieving the best, and most cost-effective outcome for you. This could mean waiting until the pandemic is over before you take any action with respect to unpaid debts. If you are owed money by a business that has been forced to close due to the government restrictions, it is possible they simply won’t have the cash flow to repay debts until the business is open again and making an income. In this situation, and especially in circumstances where the debtor has admitted they owe the debt, it may be best to wait until the pandemic is over and the business is generating an income again.
Time limits
It is key to keep in mind that a pandemic does not change a time limit that may already apply. In most situations, you will have six years to commence proceedings to recover a debt owed to you. If you want to commence proceedings after this time limit has expired, you are required to seek leave (permission) from the court to do so. It can be very difficult to obtain the court’s permission to commence proceedings out of time, and while the courts are still accepting new matters, the current pandemic will not be an acceptable reason to extend time limits.
Time frames may be different depending on the type of debt, so it is important that you seek advice for your specific circumstances.
How can the team at MDL help?
Our experienced litigation team can provide you with tailored advice to help you decide what the best option is for you and your situation.
If you need assistance recovering any debts owing to you, or you require assistance in reviewing your agreements and processes to ensure you have a plan in place for the future, contact Ben Schefe (Litigation Director) on 07 3233 9923.
COVID-19 | JOB SUPPORT LOANS BEGIN TO ROLL OUT IN QUEENSLAND
Article by Stephen Gibson | Accredited Property Law Specialist
Queensland business owners who made application for the Queensland Government’s $500 million COVID-19 Jobs Support Loans scheme, have this week begun to receive loan documentation from the Government’s lawyers.
We have now assisted many clients to work through and understand the loan documents provided for those loans. The COVID-19 Jobs Support Loans we have seen to date typically consist of 80 pages of detailed legal content, spread across about seven distinct legal documents. The loans include many very specific, and potentially onerous, warranties and obligations for borrowers. The loans also involve granting broad ranging charges over all the applicant’s assets.
The Job support loans are low interest loans of up to $250,000 available to sole traders, partnerships, private and public companies, and Trusts to assist them meet their ongoing operational costs during the pandemic period.
Relative to commercially available loans, the loans are on reasonably attractive terms including;
- no repayment for 12 months;
- interest only for 2 years thereafter;
- 2.5% fixed interest rate; and
- a 10-year loan term
The scheme will be open until 25 September 2020, or until the Government’s budgeted $500 million is fully committed. $500 million is a significant investment by the Queensland Government, but with some 438,000 small businesses currently operating in Queensland, it will be interesting to see if that is sufficient to cover businesses registering for loan support. Anyone interested in applying for the scheme, should prioritise their application as funding is capped.
If you require assistance in either making application for a COVID-19 Jobs Support Loan, or advice relating to the COVID-19 Jobs Support Loan documentation, McCarthy Durie Lawyers can help. We are experts in lending and securities with an already established familiarity with the COVID-19 Jobs Support Loans.
We are available to review and provide advice on your COVID-19 Jobs Support Loan on a 2-business day turnaround.
We are 100% remote ready and have the capability to service you remotely despite any isolation or quarantining constraints.
We can do all of this for a competitive fixed fee.
Call me directly.
Stephen Gibson | Director LLB, BBus, Acc. Spec. (Prop) – Qld
Property | Accredited Specialist
DIRECT +61 7 3479 5217
PHONE +61 7 3370 5100
EMAIL StephenG@mdl.com.au
Covid Assist | Important information for business – what you need to do now
In these times it is important to have someone in your corner, to ensure you are best positioned to make it to the other side of this pandemic. If you are uncertain about the future, it is best to talk to an expert early – don’t wait for it to get bad before you act. Call to speak to one of our Directors to find out where you stand. We’ve got your back.
Restructuring Your Workforce and Reducing Labour Costs
Many employers need to reduce their workforce – and do so quickly before cash flow dries up.
For advice regarding these types of questions call Ben Schefe Ph 07 3233 9923
• Can I stand down employees under section 524 of the Fair Work Act?
• Can I convert full time employees to part time?
• Can I terminate some employees if work dries up?
• What would redundancy payouts cost me?
• What is my liability where employees are working from home?
Inexpensive Debt Recovery Options
Maintaining cash flow is critical – it can be the difference between bankruptcy and survival.
For advice regarding quick and inexpensive ways to recover unpaid invoices call John Warlow Ph 3002 7419 or Ian Neil Ph 07 3233 9911
• Letters of demand
• Statutory Demands
• QCAT Minor Debt Claims
• Construction industry Payment Claims
• Construction industry Adjudication Applications
• Dispute resolution mediations
Bank Offers/Initiatives – Bank Negotiations – Repayment Extensions
Most banks are offering some type of extension or deferred payment plan. Getting the maximum possible extension can often hinge on a carefully crafted submission which ‘presses the right buttons’.
Our team are across the initiatives offered by most major banks and can assist you to negotiate the maximum deferment. For advice contact Nathan Hardman Ph 07 3233 9910
But if the worst happens, and the bank issues a default notice, we can help negotiate a payment plan and ‘push back’ just enough to gain some time while your cash flow improves. You may have options under the credit legislation and Banking Code of Conduct which can be used to stand up to the bank while your business improves.
Rent Relief –Landlord Negotiations
For many businesses, rent is a major expense. If making the monthly rent payment becomes a battle, we can help you negotiate a reduction or payment plan with the landlord. We can also advise on your rights against the landlord.
For more advice, contact our accredited property specialist Stephen Gibson Ph 07 3478 5217
Take comfort from the fact the landlord can’t eject you overnight. Protections for tenants exist under various pieces of legislation such as the Property Law Act and Retail Shop Leases Act. There may also be provisions in your lease which the landlord must comply with before it can enforce the lease.
We can help you stand up to the landlord if needed to enable a rent reduction or payment plan to be negotiated.
Liquidation, Bankruptcy and Asset Protection
We hope and pray all our clients will make it through these difficult times. But if it looks like your business might not be able to pull through – or if you would like advice on what would happen in the event of bankruptcy – we ‘ve got your back.
John Warlow has a depth of experience in liquidation and bankruptcy matters. John can also provide invaluable advice on asset protection and asset structuring. For advice on the following types of matters phone John on 3002 7419.
• My business can’t pay its bills – what are my options?
• What happens if my company goes into liquidation?
• What is my personal exposure for insolvent trading if I keep trading?
• How can I avoid personal bankruptcy if my company fails?
• How can I protect my personal assets?
• What is the difference between liquidation and administration – which is best?
• Who is the best liquidator to appoint?
Covid-19 Termination Clauses – new contracts may need an escape clause if you can’t settle
We have already seen several clients taking advantage of the Government stimulus packages to purchase new businesses and enter contracts to purchase new equipment. Some opportunities may also arise in the property market.
But once you sign a contract, you may not be able to get out, and might be sued for damages if you can’t settle on the due date. In these uncertain times, things might change between signing a contract and the date for settlement.
As a result, it could be wise to have a clause which enables you to terminate if you are unable to settle, or if business conditions deteriorate below your comfort level. For advice regarding such clauses contact either Andrew Taylor Ph 07 3233 9904 or Andrew Pye Ph 07 3002 7428.
Wills and Powers of Attorney
If Covid-19 has prompted you to stop putting off making a Will – or update your Will – then give Jon McCarthy Ph 07 3370 5113 or Bruce Durie ph 07 3370 5100 a call. Both Jon and Bruce have a depth of experience in Wills and estate planning.
Jon and Bruce can also advise regarding Powers of Attorney. A Power of Attorney can enable a trusted relative or friend to manage your affairs in the event you are unable to do so.
Council’s attempt to ban Apartments in Brisbane’s Suburbs
As reported in the industry publication Urban Developer (see the link: TheUrbanDeveloper.com no-reply@theurbandeveloper.com ) Friday 22 November, BCC has decided to seek a Temporary Local Planning Instrument restricting town-house and multi unit developments in precincts that are predominantly Urban Residential ie detached residential. The TLPI has been anticipated for a while now and is in addition to other measures being taken by BCC to rein in town house/multi-unit development across the BCC area. The proposed amendments to City Plan 2014 are to:
- remove provisions in zone codes, development codes and neighbourhood plans supporting Multiple dwellings (townhouses and apartments) in the Low Density Residential zone
- amend other relevant provisions in City Plan to align with this change, including amendments to the Strategic Framework, and make necessary consequential amendments.
The proposed TLPI has major problems for any developer contemplating a development application for such a project. Although only “temporary’, it acts as a definite planning instrument, but only once it has received approval from the State. That hasn’t occurred as yet. So, a small window of opportunity remains. And it may be that the State refuses to support the TLPI (but unlikely). A TLPI, once approved by the State, has a life of two years and then will lapse unless formally adopted in the Planning Scheme. Objections against the TLPI can be made to the State.
BCC has been trying to rein in higher density developments, apart from residential towers, for a while now. Other measures include proposals to revert to a policy of requiring strict compliance with car-parking requirements, a policy it all but abandoned about 5 years ago on the basis that there was decreased reliance on motor vehicles for inner city residents, and Council was promoting the notion of decreased reliance on motor vehicles.
Although the limitation of higher density development in urban residential areas probably has great merit, the proposed TLPI is a blatant political measure in the lead up to Council elections next March. The fact that the Council believes it is appropriate to contradict its own Planning Scheme in such ad hoc fashion is appalling town planning practice.
