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“Drafting a Will is simple, and cheap…isn’t it?”

When it comes to drafting a will, working out who is going to get what out from your estate is the hard bit.  After you’ve figured that out, the actual drafting of the will is just a straightforward process, and anyone can do it – no need to get a wills lawyer involved.  That’s right, isn’t it?

Well, yes and no.

Most well-written wills follow a simple structure and avoid the use of legal jargon as much as possible.  When it comes to reading a will that was not drafted by a will lawyer and interpreting what it means, a common sense approach is encouraged.  If such a will contains a few technical glitches or inconsistencies, that should not matter provided the intention of the deceased is clear enough. [...]  READ MORE →

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WHY GET A WILL LAWYER TO PREPARE YOUR WILL?

Wills – not exactly the best BBQ conversation material.  If you are like most people, you only tend to think of wills in the dead of night, worrying about what will happen to your loved ones if you die.  Or if you happen to see one of those TV commercials late at night promoting the benefit of the ‘do it yourself’ simple will kit.  At first glance that might seem like the perfect solution – quick and cheap.

So why on earth would I pay more to get my will drafted at a law firm?

A ‘simple’ will may be all that you require.  However, a will that best addresses your own unique circumstances may not come in a ‘one size fits all’ package.  For example, if [...]  READ MORE →

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Determining the “current market rent” in accordance with the Retail Leases Act 1994 (NSW): what criteria must a valuer satisfy?

DETERMINING CURRENT MARKET RENT

The Supreme Court has provided guidance on the standard of review expected of a valuer under the Retail Leases Act 1994 (NSW) (the Act), with specific emphasis put towards the factors a valuer must take into account when determining market rent. The decision in Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 (Nomad) is significant for retail landlords and tenants in NSW that have market rent review provisions in their leases.

Current market rent

Pursuant to the Act, “current market rent” must be assessed on an “effective rent basis”, meaning the valuer must consider the factors that are set out in section 31(1)(a) of the Act which include the:

  • actual terms and conditions of the lease;
  • reasonably expected rent that would be payable if the premises were unoccupied and rented out for a substantially similar use;
  • gross rent less the landlord’s outgoings payable by the tenant; and
  • any incentives typically offered to prospective tenants of unoccupied rental shops.

The valuation, which is often conducted by an independent valuer, must exclude the value of any goodwill relating to the tenant’s occupation or any value of fixtures.

Standard of review

In Nomad, the Court determined that a valuer’s sole focus when determining the “current market rent” should only be on the factors set out in section 31(1)(a) of the Act, and that the valuation will be considered as a “legitimate methodology” provided the valuation adequately considers the section 31(1)(a) factors. The weight to be given to each of the factors is not a legal test and is a matter for the valuer to determine.

Providing reasons

In Nomad, the Court confirmed that for a valuation to be legally binding on the landlord and tenant under the Act, the valuer must provide legally adequate reasons for its determination. As per section 31(1)(e) of the Act, the valuation must be in writing and must explain how the relevant section 31(1)(a) factors influenced the valuer’s determination in detail.

Importantly, where a factor has not been included in a valuation itself, courts and tribunals will infer that it was not considered as part of the valuation, and valuers should now ensure that they expressly note and explain why a factor has been omitted to ensure the valuation meets the standard of compliance now required as a result of the decision in Nomad. Courts and tribunals are now empowered to scrutinise valuations that do not adequately justify the reasons for a valuer’s determination of “current market rent”, and landlords and tenants should be mindful of the now heightened scrutiny available to these judicial bodies in this regard to invalidate a valuation.

Comparable leases and rent incentives

It is ultimately up to a valuer to adopt whatever methodology of valuation provided such method adequately considers the section 31(1)(a) factors and the valuer provides reasons for its determination in detail. In Nomad, the Court confirmed that whether a valuer needs to consider the provisions of comparable leases ultimately depends upon the selected methodology (i.e., if a valuer adopts the direct comparison method, comparable leases will need to be considered pursuant to section 31(1)(a)(i) of the Act).

With respect to rent incentives, if a valuer chooses to consider some but omits referring to other incentives provided for comparable properties, the valuer must provide an explanation for those omissions to ensure compliance with the need to “have regard to” rent incentives as per section 31(1)(a)(iv) of the Act. However, where incentives are identified, the weight given to the same is ultimately up to the valuer to determine.

Matthews Folbigg Lawyers has an experienced team dedicated to property related matters.

If you would like more information or advice in relation to the determination of “current market rent” under your retail lease, or another property related matter, please contact our Property team on  (02) 02 9635 7966 or email info@matthewsfolbigg.com.au

DISCLAIMER: This article is provided to clients and readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as definitive or complete statement of the relevant law.

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Significant Changes to NSW Duty and Land Tax in 2024

Key changes to NSW Duty and Land Tax take effect as of 1 February 2024, from the Treasury and Revenue Legislation Amendment Bill which assented on 27 September 2023.The reform introduces substantial amendments aligned with the NSW Government’s 2023-24 Budget. Key changes are set to impact land tax, corporate reconstruction, consolidation transactions and landholder duty, demanding attention and strategic planning from affected individuals, businesses and investors.

Summary of some of the key reforms include: [...]  READ MORE →

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When is Trade Mark Infringing

There are many circumstances where the use of a logo, image, word, phrase or other form of mark may be infringing on a registered trade mark. However, it can sometimes be difficult to comprehend or identify when infringement occurs where it is not clear if the alleged infringing mark is actually being used as a trade mark.

Pursuant to s 120 of the Trade Marks Act 1995 (Cth) (“the Act”), a person can only infringe a registered trade mark. Therefore, if a person uses a trade mark but has never taken steps to register the trade mark with IP Australia (and obtain registration), they do not receive the protection and exclusive right provided by the Act to make a claim and/or prosecute infringement of their trade mark. [...]  READ MORE →

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Legal Costs Associated with Will Disputes

Legal Costs Associated with Will Disputes

Will disputes occur when there is a disagreement or a perceived slight concerning the deceased and the wishes they had left in their will. Whether it be a son, cousin or distant relative, anyone who was a dependent on the deceased may make a claim against the estate.
The executor in the matter must defend these claims as they hold a duty to ensure that the testator’s last wishes are fulfilled per the will that they had left. The legal costs that are accrued by the executor in defending such claims or by the claimant in bringing these claims to court are often big amounts and paid out of the estate.
To preserve the estate, ensuring that the deceased’s hard-earned money and assets are distributed according to their wishes, the best way is to begin with a clear and well defined will. This reduces the chance of will disputes occurring in the first instance. By ensuring that your wishes are well defined with no ambiguity, there is less possibility of a potential claimant declaring that they have not been considered or provided for.
A professionally made will also removes the potential of claims as to the validity of the will being raised. This brings into dispute whether the executors have the right to deal with the estate’s assets or money. If such a dispute arises, the conflicting parties are required to fund their cases on their own.
In these types of conflicts, the named executors are not entitled to use the estate money to defend such claims of validity of the will, which in turn questions the validity of their appointment as executors. The case of Gooley v Gooley (2020) states that the named executors have no authority to pay their legal costs of the proceedings from estate funds until such an order is made by the court.
Our will lawyers are specialists in drafting and creating estate planning documents, considering factors that may bring capacity into question and experienced in will disputes, which enable us to provide you with advice in relation to any potential claim against your estate and options to avoid such potential claims. [...]  READ MORE →

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Contesting a Will

Contesting a Will

Contesting a will occurs where a person claims they have not received adequate provision under the deceased’s will. The law permits a Will to be altered after the consideration of several factors.
It begins with the drafting of a will. The will maker attempts to balance the competing interest of beneficiaries that they believe should benefit. Our Estate Planning Solicitors will be able to advise as to the moral obligation that may be owed to the various parties in your life. If one of these parties feels as though they deserve more or are entitled to more, they would likely exercise their right under the Family Provisions Act and contest the will to seek adequate provision. [...]  READ MORE →

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I have an unsecured debt with a bankrupt – will I get any money back?

If you are an unsecured creditor in a bankruptcy, you might be one of the last few creditors to be paid. In some cases, there may be no funds left to be distributed to you once the secured creditors are paid. However, there is a way of increasing your chance of getting some of what you are owed back.

Priority of creditors

The priority of creditors depends on whether a creditor is a secured or unsecured creditor. Secured creditors are those who have a security interest (for example, a mortgage or charge) over some or all of the debtor’s assets. Unsecured creditors have no security over the debtor’s assets. Unsecured creditors normally rank after secured creditors in the event of a bankruptcy. [...]  READ MORE →

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WILL DISPUTES IN NSW

WILL DISPUTES IN NSW – FAMILY PROVISION CLAIMS

 When a family member passes and you have been left out of the will or if you think that you have not been adequately provided for in the will, you could consider disputing the will by making a family provision claim. Making a family provision claim would enable an eligible family member to receive a greater share of the deceased’s estate. We are observing an increasing rise of will disputes and contested estates.  

Who is Eligible to make a Family Provision claim?

In New South Wales, section 57 of the Succession Act 2006 allows certain people to make a family provision claim, for provision from a deceased person’s estate. The categories of “eligible persons’’ include: [...]  READ MORE →

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How to stop your ex taking the children overseas – Family Law Lawyer reviews overseas travel issues

In the “post COVID-19 world”, international borders have opened back up and people are enjoying the ability to travel internationally again. For separated parents, this could cause concern. What if you do not want your ex partner to take your children overseas? What if they try to go without your permission? Our Family Law Lawyers are here to assist you if this is a concern to you.

Australian Federal Police Watch List

If you do not want your children to travel overseas without your permission, you could consider placing them on the Australian Federal Police Watch List. This is a system which has been designed to notify the police immediately when a child who’s name is on the list is attempting to exit Australia through an international airport or seaport. To place a child on the Watch List, you or your Family Law Lawyer need to do the following:- [...]  READ MORE →

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Are my digital assets a part of my estate?

Digital assets form part of your estate and are treated by the court as any other.

We live in an era where our digital footprint has come to reflect more of our identity than we realise. As technology continues to advance, it is important to account for digital assets in the process of estate planning.

What Are Digital Assets in Estate Planning?

Digital assets are often overlooked and can lead to loss of personal information and photographs that were unable to be retained through ‘digital inheritance’. To know whether it can be passed down in a Will, it must be transferable. Examples include[1]: [...]  READ MORE →

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Get out of (Liability) Gaol Free under section 447A

By Jacob Reardon a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

Section 447A of the Corporations Act 2001 (Cth) (“the Act”) enables the Court to make such orders as it thinks appropriate as to the operation of Part 5.3A of the Act. Since its introduction, the Courts have adopted an expansive construction of the provision and have liberally applied the power in a variety of contexts. Accordingly, the provision has become something of a panacea for multiple ills in the context of voluntary administration and has been used in various instances among others to: [...]  READ MORE →