Turnbull & Company Solicitors | Gold Coast, Queensland

Many people do not have a legal Will or Enduring Power of Attorney. These two documents are probably the two most important documents that you may sign in your life and ensure that your wishes are carried out after you die (in the case of the Will) and while you are alive, but not able to make your own decisions (in the case of the Enduring Power of Attorney).

A Will is the document that sets out your wishes in respect of what you want done with your possessions after you pass away, and it is important to have an up to date Will to make sure that the right people benefit from your Estate.

Most people put off making a Will because they do not wish to think about dying, but dying is inevitable for everyone and being prepared by having a Will is one way that you can save your loved ones stress and more complications at a time when they are grieving.

When should you review your Will? About once every five years is a good time to look over your Will. The other instances when you need to re-do your Will are when you marry or divorce, when you have children, or when your children reach a majority.

What is an Enduring Power of Attorney? A Power of Attorney generally means a formal agreement giving someone else the power to make decisions on your behalf.

There may come a time when, for some reason, you are unable to make decisions about things that concern you. For example you may be too ill to make decisions about your own health care or you may have an accident which could leave you unable to make your own decisions.

Who can I appoint as an Attorney? You should choose someone you can trust, such as your spouse or a family member.

Examples of personal/health matters are decisions about where and with whom you live, whether you apply for a driver’s licence or other permit, food and clothing issues, and whether to consent, refuse to consent or withdraw consent to operations or other types of health care.

The Power of the Attorney lapses on the death of the person giving the Enduring Power of Attorney, on the death of the Attorney, or if you get married. If you marry, the Power of Attorney is revoked unless your new spouse is already your Attorney. If you get divorced. The Power of Attorney is revoked to the extent that it was given to your former spouse.

To have your Will or Enduring Power of Attorney organised, please contact Turnbull & Company, Solicitors, Robina.

Stamp Duty - Principal Place of Residence

When a person is acquiring property in Queensland, they will be asked by their solicitor whether they intend to reside in the property as their principal place of residence or whether the property is being acquired for investment or other purposes.

The difference is important for reasons associated with the calculation of stamp duty payable on the contract or instrument of conveyance.

If the property is purchased as a principal place of residence, the purchaser is entitled to obtain the benefit of a concessional stamp duty rate of 1% (one per cent) of the purchase price of the property. That is, if the purchase price of the property is $100,000.00, the concessional duty payable on the purchase will be $1,000.00. The concessional rate only applies up to a maximum of $300,000.00, after which normal stamp duty rates apply.

Due to recent changes and the introduction of the Duties Act 2002, to qualify for the concessional rate of duty, two criteria must be satisfied by a purchaser:

the purchaser must enter into occupation of the property as their principal place of residence within 1 year of the delivery of possession; and
the purchaser must remain in continuous occupation of the property as their principal place of residence for at least 1 year after taking possession.

A purchaser obtains the benefit of the concessional rate by completing a pro-forma statutory declaration from the Office of State Revenue called a “Form 2.1”.

Where a purchaser completes a Form 2.1 and subsequently finds that they are unable to meet the critera referred to above to qualify for the concessional rate of duty, it is imperative that they immediately advise their solicitor in order that the Office of State Revenue can be notified. In such circumstances, the purchaser must then pay to the OSR the difference between the concessional duty paid and the duty that would have been paid if the concession had not been allowed.

The notification must be provided, regardless of the reasons as to why the qualifying criteria can no longer be met eg. Transfer in employment, inability to sell current residence.

A purchaser who fails to notify the OSR of their change in circumstances as required will be liable to pay a penalty if the OSR becomes aware of their non-compliance through its active investigation program. In that situation, not only would the purchaser be required to pay the difference between the concessional and non-concessional rates of duty, they will also have to pay a further penalty equal to the difference plus the amount payable at non-concessional rates. Suffice to say that this is a substantial penalty and full and proper disclosure should always be made to the OSR.

Should you wish to discuss any of the matters raised in this article or any other legal concerns, please contact Lionel Turnbull at Turnbull & Company on 5593 2227.

In recent times there has been an increasing amount written and spoken about occupational health and safety (“OH&S”). The rate of injury to workers is forcing workers compensation and other insurance premiums up at a rapid rate.

OH&S is a relatively complex area of law that is generally poorly understood by those most exposed by a failing to comply with the standards required, namely employers and employees.

Over the coming months Turnbull and Co. will provide “a plain English version” (to the degree that is possible) of the standards and obligations that the law requires and the potential penalties that may flow from failing to comply with those requirements.

Leaving aside the moral obligation all employers have to ensure their workers are not injured for a moment and considering just the financial impact the cost of a serious workplace injury should not be underestimated. The cost of a serious injury to the employer is now estimated to exceed $250,000 and can rapidly grow to exceed $500,000. This may appear to be an extreme amount of money to those that have been fortunate enough not to be exposed to a serious workplace injury but it is reality today. A single serious workplace incident has the capacity to bring most small to medium business’ to their knees.

Liability for OH&S arises from statute (Acts and Regulations made by Parliament) and at common law through civil actions. In Queensland the Workplace Health and Safety Act 1995 (“WH&S”) and the Workplace Health and Safety Regulations 1997 are the principal pieces of legislation that determine the standard and liability imposed in the workplace.

The Act binds all persons who may affect the health and safety of others because of workplaces, workplace activities or specified high risk plant; and everyone whose health and safety may be affected by workplaces, workplace activities or specified high risk plant and applies to all workplaces, workplace activities and specified high risk plant.

Inspectors functioning under the WH&S are empowered to enforce the provisions of the Act. Where there is an incident, not necessarily resulting in an injury to an employee, an Inspector may investigate. If a breach of the legislation is identified it may be prosecuted, if successful this usually leads to a conviction and a penalty of the person and/or the company. Liability for statutory offences raises some difficult points of law, nonetheless the rate of successful prosecutions has been increasing rapidly in recent times. In the year ended 30 June 2002 there were 99 infringements prosecuted in QLD, that number had increased to 261 prosecutions by the year ended June’ 2003 an increase of 164% in a year. There were 9,161 improvement notices and 1,062 prohibition notices issued in 2002.

Liability may also arise from civil proceedings either in negligence or in contract law. Broadly speaking in relation to OH&S, civil liability may arise in three areas:-

In civil actions, one of the litigants is the employee (almost invariably the ''plaintiff'' or the ''applicant'') with the other usually the employer (or the employer's insurance company). In some instances a third party like a manufacturer of defective machinery or the driver of a vehicle who injures an employee on the employee's way to work may be added to the proceedings.

The penalties in civil proceedings can be very substantial and while insurance provides cover in most instances the effect is still dramatic on the cost of doing business.

The penalties for breaching the statutory provisions of the WH&S can be quite significant as well ranging from and maximum penalty of $30,000 or 6 months imprisonment for the lowest category of infringement to $60,000 or 2 years imprisonment where the breach caused death or grievous bodily harm. Yes, there are possible prison terms attached to serious cases although there have not been custodial sentences handed out to date in Queensland.

In future articles we will look at the duty imposed by the Workplace Health and Safety Act 1995 and Regulations 1997. Who is the duty owed to; who is the duty imposed on; does the accident/incident have to be in the course of employment; what is the standard of proof; how is a breach of duty proven; what is causation and is an employer liable for all acts of their employees.

A de facto relationship comes into being when two people live together as a couple in a genuine domestic relationship with the “indicators” including intimacy, trust and personal commitment to each other. A de facto relationship may be constituted regardless of the sex of the couples.

In Queensland the division of property upon the breakdown of a de facto relationship in dealt with by legislation contained within the Property Law Amendment Act 1999 (the “Act”). The Act came into force on 21 December 1999 and therefore applies to all de facto relationships in existence or commencing after this date. The Act does not apply where the parties had separated prior to 21 December 1999.

Where a de facto relationship has broken down the Court can make a property adjustment order between the de facto spouses provided:-

After a de facto relationship has ended, a de facto spouse may apply to the Court for an Order adjusting an interest in the property of either or both of the de facto spouses. The application may be for the benefit of either of the de facto spouses or a child or children of the de facto spouse.

Section 286 of the Act provides the Court with the power to make a property adjustment Order that the Court considers just and equitable in the circumstances having due regard to the factors contained within subdivision 3 including;

The Court must consider the financial and non financial contributions made directly or indirectly by or for the de facto spouses or a child of the de facto spouses to:

The Court must consider the contributions including any homemaking or parenting contributions made by either of the de facto spouses or a child of the de facto spouse to the welfare of:-

The Court must also consider the effect of any proposed Order on the earning capacity of the de facto spouses;

The financial settlement provisions that determine the distribution of property on separation are inherently complex and are only encountered at a time when the parties are under considerable emotional and financial stress. It is important that professional advice is sought early in order that the parties rights are protected.

Steve Baldwin of our firm would be pleased to provide you with that advice and can be contacted at our office on 55932227.