Newsletter - Autumn Edition - Mar'03
If you are an “owner/builder” you will have to take warranty insurance if:-
1. The value of work done was more than $12,000.
2. You are selling the property within six (6) years of
completion of work.
This is consumer legislation to protect purchasers from defective work of owner/builders.
If you do not take insurance then you could be fined up to $10,000. Also, your purchaser can withdraw from the Contract. The policy for insurance must be attached to documentation before the Contract is signed and the deposit paid.
If a vendor of a business makes a false statement which induces the purchaser to buy the business then he faces a number of severe consequences. These include:-
- The purchaser may rescind the Contract and receive a refund of the purchase money.
- The purchaser may make a claim for damages.
- Offences may be committed under the Trade Practices Act or the
Fair Trading Act. Severe fines and even jail can be the result.
A person making a Will, called a Testator, must, at the time of signing the Will, understand the nature and effect of what is being done. In other words, the Testator must understand that a Will is being signed and, in general terms, understand the content of the Will.
Each case is determined on its own facts. The Testator may be delusional from time to time. However, if a Will is signed during a lucid period then the Will is likely to be held to be valid. If a solicitor has any concerns about the capacity of a Testator at the time that the Will is being signed then he must obtain written medical advice confirming the capacity of the Testator.
There is an order of priority of payment for creditor's claims when a company becomes insolvent. It used to be that the Tax Department gained priority. This ended in 1993.
Priority for creditors in a company in liquidation is as follows:-
1. Expense in preserving assets and obtaining the best result
for a company's business.
2. The costs of creditors who apply to wind up the company.
3. The deferred expenses of liquidators.
4. Wages and superannuation contributions owed to employees
All services rendered prior to winding up.
5. Leave entitlements to employees.
6. Employee retrenchment payments.
7. Secured creditors.
8. Unsecured creditors (proportionate payments may apply).
9. Shareholders.
As can be seen employees creditors and shareholders are unlikely to receive their entitlement as they are well down in the "pecking order".
You may be trying to sell a new invention or a good idea to a manufacturer or a distributor and want your intellectual property to be protected. The usual way to do this is by having the other party sign a Confidentiality Agreement.
The Courts have now held that the following elements are necessary for the protection of your idea:-
1. The information that is disclosed must be done in circumstances
showing the requirement for the confidence.
2. Unauthorised disclosure could cause detriment to you.
3. Your invention/idea must be well developed.
In other words, “a pie in the sky” is not sufficient.
4. Your invention/idea must have “inventive merit”. That is, it is a
product of the human brain which gives its confidential nature.
DIVIDING YOUR SUPERANNUATION WHEN YOU DIVORCE
The law relating to the division of superannuation has undergone a massive change. Today superannuation is considered an asset in the same way that a house is an asset and Courts can order division of superannuation.
This may mean that the Courts will insist that each party have part of the proceeds of superannuation, the payment to be made in accordance with the law to each party. The Courts seem to have taken the policy decision to divide assets so that each party retains assets which can be immediately cashed and assets which will provide an income at a determined future time.
I would like all readers of this Newsletter to note that while I believe the content to be accurate and correct, this does not mean that, on its own, it can be relied upon as legal advice. If you have a problem which involves any of the issues contained in this newsletter then please contact me to discuss that problem.