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purchasing a commercial property
Managing partner David McEachern was a guest
speaker last month at a Citibank Commercial Mortgages
workshop held at the Hilton hotel in Brisbane. David's
presentation focused on the legal aspects of purchasing commercial
property.
David covered a range of issues relevant to the topic including an
explanation of why purchasers' requirements differ depending on the
purpose for which property is being purchased.
Other points David raised included:
the complexities of family law property disputes
If you are involved in a property dispute you will need to seek legal advice
because the laws governing the division of assets are complex. When
trying to reach a property settlement you must apply to either the Family
Court or the Federal Magistrates Service, depending on the total value of
assets. Generally, the Federal Magistrates Service only has jurisdiction to
deal with disputes worth less than $700,000.
If both parties agree on the distribution of assets the Court can make an
order by consent, which prevents the need for lengthy and expensive
litigation. If the parties cannot agree, the Court has a three stage process
for resolving property disputes:
Throughout this process the Court encourages agreement by settlement,
and provides opportunities for this to occur.
consumer protection laws in queensland
If you have a complaint as a consumer there may be a course of action for
you to resolve the issue. There are significant consumer protection laws in
place, mainly in the form of Commonwealth and State legislation - the
federal Trade Practices Act and the QLD Fair Trading Act.
This legislation covers grievances relating to any of the following
categories:
offered, such as buying a car, or contracting to have a house built. Various
avenues of recourse are open to people with grievances. These include:
If you believe that you might be able to pursue a claim for consumer
protection contact us. Our lawyers will spend time with you to understand
your complaint and work with you to determine the most appropriate and
effective course of action.
avoid conveyancing traps
A case currently before the High Court of Australia demonstrates the
value of having your conveyancing done by solicitors, not mere
conveyancers. The decision in Hillpalm v Heaven's Door could have an
important impact on how conveyancing should properly be conducted. This
case is currently being appealed before Australia's highest court.
If the original decision is affirmed, it will mean that the protection of title
offered by the indefeasibility provisions in the Real Property Act 1900 would
be somewhat reduced. While this would most likely only occur in rare
instances, it would demand greater vigilence from conveyancers. In order
to minimise risk, they would need to conduct extra searches than
previously.
When acting on behalf of purchasers, conveyancers would need to
search a council's records to ensure that there are no conditions of
consent relating to subdivisions that could burden the purchasers title in
the future. This need for further searches is strengthened by the fact that
vendors are under no obligation to disclose any such outstanding consent
conditions that could burden land in the future.
Whether such changes to conveyancing practice will need to occur
remains uncertain pending the decision by the High Court in Hillpalm.
Further, there may be situations where it is advisable to insert special
conditions into contracts for sale of land in order to protect purchasers from
hidden traps. A solicitor is more likely to identify this need than a
conveyancer. And, even if a conveyancer recommends it they will need to
pass the contract on to a solicitor to make the amendments.
The solicitors at Cranston McEachern provide a service that is always
abreast with changes in the law. Engaging a solicitor to assist in selling
or purchasing property is the best way to minimise the risks associated
with such major transactions.
controversies involved in ethics and health law
The Mental Health Act and Eating Disorders
There is often confusion and controversy in the use of the Mental Health Act
in anorexia nervosa. Following a television documentary instigated by a
family who lost their daughter through anorexia nervosa the Mental Health
Act Commission produced a report which specifically addressed this
problem.
The law in Australia recognises that the accepted role for an ill individual is
for him or her to recognise their health problem and take action to remedy
their condition. Anorexia nervosa does not conform to this set of rules. A
classic feature of the illness is that a person with anorexia nervosa does
not perceive herself to be unwell. This stands in stark contrast to the overt
signs of ill health observable by others.
Assessing the Danger
In some cases the abnormal beliefs are held with such tenacity and/ or the
balance of maintaining factors is tipped towards continuing anorexia
nervosa that the individual's health and safety is put at risk. Anorexia
nervosa has the highest mortality of all psychiatric illnesses. It is therefore
important to competently assess risk factors and to be prepared to use the
Mental Health Act as necessary.
The Law and the Therapeutic Relationship
On the surface there appears to be a basic contradiction between the
collaborative, therapeutic relationship which is helpful in the management
of anorexia nervosa and the use of the Mental Health Act. However this can
be managed without confrontation. The therapist needs to be explicit about
the boundaries of Mental Health Law and ethical standards and to work
with the patient under this framework.
In Summary
The Mental Health Act can be used for the treatment with people with
anorexia nervosa if it has resulted in the individual's health and safety
being put at risk. Those patients with a severe form of the illness warrant
management under the Mental Health Act. Anorexia nervosa is recognised
to be a mental illness within the meaning of this Act. The Mental Health
Act is under review at the present time and changes may be made.
unfair dismissal
If you believe that you have been unfairly dismissed or threatened with
dismissal you may have a claim against your employer. Under the QLD
Industrial Relations Act 1996 a person can apply to the QLD Industrial
Relations Commission if they believe they have been unfairly dismissed.
According to the Queensland Department of Commerce, a dismissal is
unfair when it is "harsh, unreasonable, or unjust". When dealing with
complaints the Commission takes into account factors such as:
unfair dismissal claim. For example, an employee who is covered by a
Federal award cannot apply to the QLD Commission if they have a right to
make a claim under federal law.
Generally, applications must be made within 72 days of the dismissal.
However the Commission has the discretion to extend this period if it
thinks it appropriate. Lodgment of an application leads to a conciliation
hearing. If conciliation is unsuccessful an arbitration hearing is held, where
the process is more formal.
It is advisable to engage a solicitor to advise and represent you
throughout the process. Good legal representation at an early stage can
often lead to a good result without the need for the time and expense of
a full hearing.
directors' duties
Are you a director of a company, perhaps a family company? Directors
owe fiduciary duties to their company. The law that governs directors'
duties is extensive and complex.
For example, directors have an important obligation to avoid conflicts
between their duties and interests. Conflicts of interest can arise more
readily than often expected.
However, there are differences in the duty to avoid conflicts at general law
and in the Corporations Act 2001. For example, at general law no-one who
has a fiduciary duty can enter into agreements in which they have a
personal interest that conflicts with the interests of those they are bound to
protect.
However, it is common for company constitutions to allow directors to have
a conflict of interest, so long as the director discloses the interest and
follows certain procedures. This is governed by Division 2 of the
Corporations Act 2001. In some instances replaceable rules apply to
proprietary companies with no constitution.
Serious liabilities can stem from conflicts of interest.
If you have any doubts about a transaction or agreement contact
Cranston McEachern solicitors for clear advice.
This newsletter is prepared by Cranston McEachern as a free service to
its clients. It is not a solicitation to provide legal services to the general
public nor does it represent an opinion of law. When making decisions
that could affect your legal rights, please contact us for professional
advice.
Managing partner David McEachern was a guest
speaker last month at a Citibank Commercial Mortgages
workshop held at the Hilton hotel in Brisbane. David's
presentation focused on the legal aspects of purchasing commercial
property.
David covered a range of issues relevant to the topic including an
explanation of why purchasers' requirements differ depending on the
purpose for which property is being purchased.
Other points David raised included:
- > Terms, pre-contract enquiries and special conditions of
commercial contracts;
> Necessity of searches to determine, for eg., contamination or
zoning restrictions; and
> Inspection of lease documentation if property is tenanted.
the complexities of family law property disputes
If you are involved in a property dispute you will need to seek legal advice
because the laws governing the division of assets are complex. When
trying to reach a property settlement you must apply to either the Family
Court or the Federal Magistrates Service, depending on the total value of
assets. Generally, the Federal Magistrates Service only has jurisdiction to
deal with disputes worth less than $700,000.
If both parties agree on the distribution of assets the Court can make an
order by consent, which prevents the need for lengthy and expensive
litigation. If the parties cannot agree, the Court has a three stage process
for resolving property disputes:
- > The Court ascertains the net asset pool.
Generally all assets are taken into account, even if they are acquired
before the marriage or after the separation.
> Contributions to the net asset pool.
In determining contributions the Court takes into account unpaid
domestic labour.
> Future needs.
The Court makes a determination as to the future needs of both
parties. This can involve various considerations including age,
health, income, earning capacity, and the financial circumstances of
any new relationship. The Court has broad discretion in the
weighing of these matters.
Throughout this process the Court encourages agreement by settlement,
and provides opportunities for this to occur.
consumer protection laws in queensland
If you have a complaint as a consumer there may be a course of action for
you to resolve the issue. There are significant consumer protection laws in
place, mainly in the form of Commonwealth and State legislation - the
federal Trade Practices Act and the QLD Fair Trading Act.
This legislation covers grievances relating to any of the following
categories:
- > Misleading conduct (e.g. illegal marketing practices)
> Unconscionable conduct and unjust contracts
> Substandard goods and services
> Goods that cause injury or damage
offered, such as buying a car, or contracting to have a house built. Various
avenues of recourse are open to people with grievances. These include:
- > Direct negotiation
> Government bodies
> Industry and professional bodies
> Industry dispute resolution schemes
> Legal action through courts
If you believe that you might be able to pursue a claim for consumer
protection contact us. Our lawyers will spend time with you to understand
your complaint and work with you to determine the most appropriate and
effective course of action.
avoid conveyancing traps
A case currently before the High Court of Australia demonstrates the
value of having your conveyancing done by solicitors, not mere
conveyancers. The decision in Hillpalm v Heaven's Door could have an
important impact on how conveyancing should properly be conducted. This
case is currently being appealed before Australia's highest court.
If the original decision is affirmed, it will mean that the protection of title
offered by the indefeasibility provisions in the Real Property Act 1900 would
be somewhat reduced. While this would most likely only occur in rare
instances, it would demand greater vigilence from conveyancers. In order
to minimise risk, they would need to conduct extra searches than
previously.
When acting on behalf of purchasers, conveyancers would need to
search a council's records to ensure that there are no conditions of
consent relating to subdivisions that could burden the purchasers title in
the future. This need for further searches is strengthened by the fact that
vendors are under no obligation to disclose any such outstanding consent
conditions that could burden land in the future.
Whether such changes to conveyancing practice will need to occur
remains uncertain pending the decision by the High Court in Hillpalm.
Further, there may be situations where it is advisable to insert special
conditions into contracts for sale of land in order to protect purchasers from
hidden traps. A solicitor is more likely to identify this need than a
conveyancer. And, even if a conveyancer recommends it they will need to
pass the contract on to a solicitor to make the amendments.
The solicitors at Cranston McEachern provide a service that is always
abreast with changes in the law. Engaging a solicitor to assist in selling
or purchasing property is the best way to minimise the risks associated
with such major transactions.
controversies involved in ethics and health law
The Mental Health Act and Eating Disorders
There is often confusion and controversy in the use of the Mental Health Act
in anorexia nervosa. Following a television documentary instigated by a
family who lost their daughter through anorexia nervosa the Mental Health
Act Commission produced a report which specifically addressed this
problem.
The law in Australia recognises that the accepted role for an ill individual is
for him or her to recognise their health problem and take action to remedy
their condition. Anorexia nervosa does not conform to this set of rules. A
classic feature of the illness is that a person with anorexia nervosa does
not perceive herself to be unwell. This stands in stark contrast to the overt
signs of ill health observable by others.
Assessing the Danger
In some cases the abnormal beliefs are held with such tenacity and/ or the
balance of maintaining factors is tipped towards continuing anorexia
nervosa that the individual's health and safety is put at risk. Anorexia
nervosa has the highest mortality of all psychiatric illnesses. It is therefore
important to competently assess risk factors and to be prepared to use the
Mental Health Act as necessary.
The Law and the Therapeutic Relationship
On the surface there appears to be a basic contradiction between the
collaborative, therapeutic relationship which is helpful in the management
of anorexia nervosa and the use of the Mental Health Act. However this can
be managed without confrontation. The therapist needs to be explicit about
the boundaries of Mental Health Law and ethical standards and to work
with the patient under this framework.
In Summary
The Mental Health Act can be used for the treatment with people with
anorexia nervosa if it has resulted in the individual's health and safety
being put at risk. Those patients with a severe form of the illness warrant
management under the Mental Health Act. Anorexia nervosa is recognised
to be a mental illness within the meaning of this Act. The Mental Health
Act is under review at the present time and changes may be made.
unfair dismissal
If you believe that you have been unfairly dismissed or threatened with
dismissal you may have a claim against your employer. Under the QLD
Industrial Relations Act 1996 a person can apply to the QLD Industrial
Relations Commission if they believe they have been unfairly dismissed.
According to the Queensland Department of Commerce, a dismissal is
unfair when it is "harsh, unreasonable, or unjust". When dealing with
complaints the Commission takes into account factors such as:
- > Was a reason given for the dismissal?
> Was the person given an opportunity to give an explanation or to
justify their reinstatement or re-employment?
> Were warnings given before the person was dismissed?
unfair dismissal claim. For example, an employee who is covered by a
Federal award cannot apply to the QLD Commission if they have a right to
make a claim under federal law.
Generally, applications must be made within 72 days of the dismissal.
However the Commission has the discretion to extend this period if it
thinks it appropriate. Lodgment of an application leads to a conciliation
hearing. If conciliation is unsuccessful an arbitration hearing is held, where
the process is more formal.
It is advisable to engage a solicitor to advise and represent you
throughout the process. Good legal representation at an early stage can
often lead to a good result without the need for the time and expense of
a full hearing.
directors' duties
Are you a director of a company, perhaps a family company? Directors
owe fiduciary duties to their company. The law that governs directors'
duties is extensive and complex.
For example, directors have an important obligation to avoid conflicts
between their duties and interests. Conflicts of interest can arise more
readily than often expected.
However, there are differences in the duty to avoid conflicts at general law
and in the Corporations Act 2001. For example, at general law no-one who
has a fiduciary duty can enter into agreements in which they have a
personal interest that conflicts with the interests of those they are bound to
protect.
However, it is common for company constitutions to allow directors to have
a conflict of interest, so long as the director discloses the interest and
follows certain procedures. This is governed by Division 2 of the
Corporations Act 2001. In some instances replaceable rules apply to
proprietary companies with no constitution.
Serious liabilities can stem from conflicts of interest.
If you have any doubts about a transaction or agreement contact
Cranston McEachern solicitors for clear advice.
This newsletter is prepared by Cranston McEachern as a free service to
its clients. It is not a solicitation to provide legal services to the general
public nor does it represent an opinion of law. When making decisions
that could affect your legal rights, please contact us for professional
advice.
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| Straightforward Enterprising Effective |
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