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Testimonials

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Family Lawyer Reviews

From our clients

“Hi Carlos,

I though the mediation session was very successful.

I came into the session not believing mediation would be possible however you focused solely on coming to an agreement rather than the bureaucratic side of things.

I would have no hesitation in recommending you to anyone should they need mediation.

Thanks again and kind regards“

K. W.

“Dear Anya,

We wanted to thank you for everything you did to assist us throughout our surrogacy journey…

O is now 3 ½ months old and full of smiles. A continues to be as incredible as ever and our surrogate family is madly in love with this beautiful little girl.

Sending much love from our family to yours”

K & H

“Thank you Carlos,

I have found you and Phoebe way more professional and detailed than anyone previous and this has given me great confidence that I am finally in good hands and you are both decent lawyers.”

C

Hi Phoebe,

“I’d just like to thank you for your dedication, efforts and amazing work today.  

Although, my mum didn’t receive what she was hoping for, a huge weight has now been lifted off her shoulders. At least she can finally move on and focus on the important things in her life.”

J

Good morning Phoebe and Carlos

“I am the father of D.

I just wanted to pass on my sincerest gratitude to you both for not only the legal support but also the personal support during the recent AVO and custody issues she has been dealing with.

Being so far from your children, it is often difficult watching them stress and go through traumatic events that domestic issues can present. However, it is pleasing when you hear your daughter talk so positively of her legal team.

In my work I have seen many legal experts forget they are dealing with real people with real feelings and emotions, however from D’s daily contact I can sense you guys are different. “

G & D

Hi Carlos

“Thank you so much,

you are super man.”

E.

“Dear Anya,

Thank you for making a horrible experience bearable.

We really appreciated your talent to combine professionalism with empathy.

We wish you all the best in your career. We think you are wonderful”

K & E

When is a flood not a flood?

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Standard Definition of Flood Regulations Finalised:

The Gillard Government enacted Regulations that give effect to the standard definition of flood as part of its continuing efforts to make flood insurance simpler and more effective following recent natural disasters.

Regulations were made at a meeting of the Executive Council to provide a standard definition of “flood” for home building and home contents; small business; and strata title insurance contracts.

The regulations include the word “flood” to be used in these insurance contracts to mean:

the covering of normally dry land by water that has escaped or been released from the normal confines of:

  • any lake, or any river, creek or other natural watercourse, whether or not altered or modified; or
  • any reservoir, canal, or dam.

The standard definition of ‘flood’ will be used if the insurer offers flood cover in their home building, home contents, small business and strata title insurance policies.1/2

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In our January B2B article we recommended a healthy new year audit of your business. Auditing your business contracts may not only improve your business potential and balance sheets, but may avert serious disaster when a contract is inadequate or ineffective.

In the aftermath of recent flood events in Queensland and Victoria, and closer to home in Queanbeyan, affected home and business owners will be meticulously analysing their insurance cover to ascertain whether they are covered and how much for.

Your insurance cover is a contract between you and your insurer. Your policy schedule tells you the amount of cover you have, and your policy document tells you what events you are covered for and what may jeopardise the extent of your cover (for example, under-insuring, non-disclosure).

Incursion of water to your premises is a complicated insurance event because policies often differentiate between the sources of water: storm water, rainwater and floodwater are examples. Floodwater damage is a common exclusion in an insurance policy. The source of water can therefore be crucial to the success of an insurance claim for water damage, and policies must be read carefully – both before and after a flood has occurred.

I had an interesting time in Katherine in the Northern Territory as a young lawyer when the Katherine river broke its banks and flooded the town. I advised many businesses regarding insurance claims and participated in the first litigation by a business against an insurer and insurance broker (Elilade Pty Ltd v Nonpareil Pty Ltd [2002] FCA 909). The claimant’s business insurance excluded flood, defined as inundation by water overflowing the normal confines of a natural watercourse. However, eyewitness and hydrological evidence was called to establish that there was an initial ponding of rainfall in the premises, up to 300mm in depth, prior to the river breaking its banks. The 300mm ponding caused damage to business stock before the river broke its banks, including damage to stock above the waterline via humidity. Damage caused by this initial inundation was covered because it was not floodwater.

In the Elilade case, close examination of the policy definitions and of the event itself by qualified experts led to a payout under a policy that on the face of it seemed to be ineffective.

The business owners in Elilade did not know that they were not covered for flood until they were flooded. They enjoyed a partial success in the recovery of monies because of the hydrological evidence, however it would be infinitely easier to examine your policies carefully in advance to ensure that you are covered for all potential risks to your business.

For more information or to make and appointment contact our Business Services team:

p: 02 6206 1300 | e:  info@elringtons.com.au

 

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1. Fixing Flood Insurance – Joint Media Release Attorney-General  Robert McClelland; Assistant Treasurer Minister for Financial Services and Superannuation Bill Shorten

2. Standard Definition of Flood Regulations Finalised 

Archives for ebalawyers.com.au – IBA Conference 2007

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Posted with the permission of the International Bar Association

Immigration and Nationality Law

A review of trends in Australian immigration law and policy during 2006-07 by Michael Thornton

Sponsoring Temporary Workers – The Australian Experience by Maria Jockel

Individual Tax and Private Client

Taxation of Australian resident and non-resident trusts by William D Thompson

Luxembourg tax treatment of trusts and fiduciary operations by Jean Schaffner

Capital Markets Forum

Australian REITs – Regulation and market trends by John Sullivan

International Franchising

Update from Australia by Andrew Wiseman

The Australian Position by Andrew Wiseman

Power Law

Renewable Energy in Australia: Current Status and Future Prospects by Dr Nicholas Brunton

Employer’s rights

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Is there such a thing or is the tide turning?

Consider the following scenario.  A senior employee signs a two year fixed term contract but, eight months later, he tenders his resignation after accepting alternative employment with a competitor.  Should the employer accept the resignation and potentially lose the valuable client networks that the employee may have? Or refuse the resignation and enforce the terms of the employment contract.

In a recent NSW case a stock brokerage refused to accept a stock broker’s resignation and successfully obtained an injunction preventing the broker from working for the competitor for his notice period of six months (Purcell vTullett Prebon (Aust) Pty Ltd [2010] NSWCA 150). The broker was placed on “garden leave” for that period, and just before the six months expired, the brokerage directed the broker to return to work. The broker refused and the brokerage successfully sued the broker for damages.

The decision signals a real change in the direction of the courts in protecting employers’ interests under employment contracts.

For Employers, this case means that where an employee breaks their employment contract the Court may enforce a non-solicitation restraint and may stop an employee working with a competitor for a specific timeframe. A properly drafted employment contract containing  a ‘garden leave’ provision can be used to stop an employee moving straight to a competitor, thereby protecting client networks and confidential trade and client information on behalf of employers.  A “garden leave” clause is one that allows an employer to direct an employee to cease all duties during their period of notice – their employment and their pay continues. This prevents an employee working with a competitor or acting against the employer’s interests until their contract expires. Garden leave is generally enforceable if an employment contract has been carefully worded to allow it. However, it may be unenforceable if the employee has particular skills that he or she needs to keep in practice or if remuneration is dependent on work performed.

For Employees who are entering into an employment contract, they should negotiate any restraints carefully, and check whether their contract contains a ‘garden leave’ provision. Such a provision may require an employee to take leave following notice of termination for the remaining period of the employment contract, preventing the acceptance of new employment.

Elringtons can assist you with advice or information regarding employee and employer rights and responsibilities under employment contracts.

For more information or to make and appointment contact our Business Services team:

p: 02 6206 1300 | e:  info@elringtons.com.au

 

Property Law – Asset Protection

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Most family businesses are operated within complex structures such as family trusts or companies and often a combination of these.

Many of these structures were put in place as a result of past Federal and State death and gift duties (taxes) which have since been abolished. At that time these family structures provided protection from these duties and also provided potential tax benefits to the family business.

More recently they provide potential tax benefits and other important benefits such as asset protection for key family members in the business.

Lately, there has also been rapid growth in the use of self-managed super funds (SMSF) for family investments.

The effect of this is that, apart from the family home, most of a business owner’s assets are now owned “out of the Will” instead of “in the Will”. That is to say, most family business and investment assets are held either in family trusts, family companies or SMSF’s. They are not in the personal names of the associated family members. They are not assets that can be readily passed on by a Will.

Therefore, managing the succession of a business owner’s assets or planning for an untimely accident or illness can frustrate and complicate the operation of the business.

Some questions that might arise for you, as a business owner, to assist in the smooth operation of your business and the passing of your estate, should an untimely event occur, include:

  • Does a “straight forward” Will make provision for family business and investment structures held by family trusts, family companies or SMSF’s?
  • Do you have a business plan so that, in the event of accident or illness, business decisions are carried out by the appropriate people?
  • Does that business plan contemplate who the new directors of your family company or trustees of your family trust should be?
  • Does your business plan cater for a smooth transfer of business assets in a fashion that is fair and reasonable to all family members and avoid potential conflicts down the track?

The successful structuring of inter-generational wealth transfers and succession arrangements need experienced advisors who have the skills, experience and resources to deal with a full range of issues for you and your business.

If you have any questions relating to the above, or questions surrounding your own family business structure, please do not hesitate to contact elringtons:

p: 02 6206 1300 | e: info@elringtons.com.au