Newsletter - Autumn 2005
DOMESTIC VIOLENCE COURTS
Domestic Violence Courts will begin operations at Heidelberg and at Ballarat this year. The Courts will have the power to hear civil and criminal matters involving domestic violence. They can direct persons who use violence against family members to attend a Court directed counselling program to help them stop their violent behaviour.
The Government has committed itself to improving services for victims of domestic crimes and to train Magistrates and Police on family violence issues.
AGE DISCRIMINATION LAWS
Legislation has passed through Federal Parliament to eliminate age discrimination. The discrimination must cease in areas such as employment, education, access to goods, services and facilities. Exemptions exist which relate to Superannuation, insurance, credit, pensions and for acts, which might have been done in compliance with particular laws, awards or agreements.
MARRIAGE AND PERMANENT RESIDENCY
It is commonly believed that marriage to an Australian citizen or prominent resident will give automatic rights for the new spouse to stay in Australia. This is not the situation.
The new spouse is required to satisfy all visa requirements including those relating to health and character. In many circumstances the new spouse will have to leave Australia to make the application for permanent residence from an overseas country.
FAMILY LAW PROCEDURES
The Family Court has established new procedures to try to resolve disputes before the Court case can commence. The hope is that costs will be reduced. The parties will have to make full and frank disclosure of all information which is relevant to the issues in dispute.
This information includes a schedule of assets, income and liabilities; a list of documents which each party possesses or controls that is relevant to the dispute and providing copies of documents which the other party might require. Documents must include the 3 most recent taxation returns and assessments, all superannuation details, Trust or partnership documentation including balance sheets, profit and loss accounts, depreciation schedules and tax returns and business activity statements.
Lawyers are expected to advise clients of ways to resolve the dispute before starting legal action; negotiate a solution by settlement and give full explanations of every aspect of what is occurring and provide details of all costs likely to be expended.
NO REFUND SIGNS
Retailers who display 'No Refund' signs may be misleading their customers. The customers may believe that the refunds are not available to them no matter what the circumstances. Consumers are entitled to a refund where the goods are faulty, may not be of merchantable quality or not suitable for the purpose required by the customer if that purpose was explained to the salesman who then recommended the product. The retailer cannot avoid responsibility in those circumstances.
COPYRIGHT
Copyright protection expires 50 years after the date of the author of the work that is copyrighted. This time will be increased by 20 years. The provision is not expected to be retrospective so that work for which copyright has already expired will not receive further protection. However, work that remains currently protected will have the term extended.
WORKING FOR YOUR EMPLOYER'S COMPETITOR
A recent case in NSW has shown that an employer can prevent a former employee from working for a competing company for a reasonable period of time when -
a. The employer is protecting its trade secrets in a legitimate manner.
b. The employer is not preventing its former employee from earning a living in some other field.
c. The employer has made a reasonable payment to the employee in compensation for the restraint.
TAXATION AND POOR BOOKKEEPING
The Taxation Department has warned that businesses which keep poor financial records will face penalties. The Taxation Department is going to check record keeping practises and will provide written reports which will include suggestions for improvements. Penalties will apply if businesses fail to heed the warning that is given.
BUYING A BUSINESS
It is important for purchasers of a business to be sure of the type of business that they are buying before they sign the contract. The fact that the business trades in a different manner than that which was expected may not release the purchaser from the obligation to buy the business. The conduct of the vendor may not be regarded as misleading and deceptive.
A purchaser of a sandwich bar ought not to be surprised if there are deliveries made to nearby offices and factories. That would be expected in that type of business. It is, however, a grey area if a large part of the business is devoted to catering. The fact that the vendor did not advise the purchaser of the catering that was done by the business may or may not be regarded as deceptive. Each case will be dealt with on its actual facts. In any event, purchasers should always ask appropriate questions before signing a contract.
THE ARCHITECT'S REPORT - DEALING WITH DEFECTS
It is a very common and recommended practice that a purchaser of a home will make it a condition of the contract that the purchase is subject to the inspection by an Architect or suitably qualified builder of the quality and standard of the structure.
The Architect/Builder may report on a defect which is obvious to the most inexperienced purchaser. It is unlikely that the purchaser could withdraw from the contract because of that defect. However, if the Architect/Builder finds something that is not obvious and which can be the source of present or future problems then the purchaser may withdraw from the contract.
SUBJECT TO FINANCE
Most contracts of sale for dwellings are subject to the purchaser obtaining finance. The Banks are very keen to lend their money and will lend 100% of the value of the property and even the costs associated with the purchase to approved purchasers. It does sometimes happen that the purchaser gets 'cold feet' before the loan has been approved and after the 'cooling off' period has expired. The purchaser then uses the ruse of asking the Bank to refuse the finance that has been applied for. The Bank would behave in a misleading manner if it refused the loan to a qualified applicant. Most Banks will refuse to write a letter in those circumstances.
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.