What is a Statutory Demand and how do they work?

A statutory demand is a document to enforce a “debtor company” to pay a debt. In order to serve a Statutory Demand, there must be no dispute as to the amount owed and the debt must be at least $2,000.00.

The time limit to comply with a statutory demand is twenty-one days after service of the document and is a time frame that strictly applies.

If you are served with a statutory demand, you have twenty one days to either:

  • Pay the debt outlined in the demand; or
  • Make an application to the Court to set aside the demand.

In order to successfully have a statutory demand set aside, there must be a genuine dispute as to the debt which is the subject of the Statutory Demand, or, the Statutory Demand must be flawed in some way (such as being incorrectly served, or incorrectly drafted).

Failure to comply with, or to make an application to set aside the Demand within twenty-one days, results in the ‘debtor company” being deemed insolvent. The debtor company is viewed as being unable to pay it’s debts as and when they fall due and an application may then be made to the Court to wind up the company (A Winding Up Application). A Notice of Intention to Wind Up a company is also filed with ASIC and this becomes public information. Anyone may see the status of the company.

If the creditor’s Winding Up Application is successful, the Court will order that the debtor company be wound up under insolvency.

A liquidator will be appointed by the Court who will sell the company’s assets and then distribute proceeds to the creditors. Once all the assets have been sold and distributed, ASIC will deregister the company. This means that the company will no longer exist.

If a company owes you money, or if you have been served with a statutory Demand, contact us to discuss the options available to you.

 

 

Sentencing: What are the different penalties a Court can impose?

When sentencing an offender, the Court’s purposes are as follows:

–          To ensure adequate punishment

–          To prevent future crime by deterrence

–          To protect the community

–          To promote rehabilitation

–          Accountability

–          To denounce illegal conduct; and

–          To recognise the harm done to the victim and the community

 

Dismissal or conditional dismissal

You may be found guilty of an offence, but your charge may be dismissed without conviction pursuant to section 10 (1)(a) of the Crimes Sentencing Procedure Act. This means that the offence will not be recorded as a conviction.

Alternatively, the charge(s) you may be dismissed without conviction on the condition that you enter into a bond to be of good behaviour for a period of up to two years (section 10(1)(b) Crimes Sentencing Procedure Act.

The Court will take the following into account when considering granting you a s10 dismissal:

–          Your (otherwise) good character.

–          Subjective characteristics such as your age, health and mental condition;

–          The nature of the offence;

–          Any exceptional circumstances in which the offence was committed;

–          Any other matter the Court thinks fit to take into account.

This is not an exhaustive list and many matters may influence the possibility of a section 10 dismissal being relevant (or not) for your case.

Fines

A fine is the most common penalty imposed after a conviction. One penalty unit is currently defined as being $110. When imposing a fine, the Court must take into account the ability of the offender to pay. A Court should not impose a fine that the offender cannot pay. Therefore, the amount of the fine may vary depending on your economic circumstances.

 

Good Behaviour bonds

Bonds are an agreement to be of good behaviour for a certain period of time and can include conditions placed on an offender, for example to undergo medical treatment, drug/alcohol counselling, or accept the supervision of the Probation and Parole Service. The conditions will depend on the circumstances of your case.

A good behaviour bond must not exceed five years and a bond can be imposed in addition to a fine for the same offence.

Community Service Orders (CSO)

A Court may impose a community service order for up to 500 hours. A CSO may not be combined with a good behaviour bond.

CSO involves unpaid work in the community that is supervised by the Probation and Parole Office. Alternatively, you might be ordered to undertake a course, such as Anger Management or Alcohol and Drug Counselling as part as the CSO.

There is no presumption that failure to comply with a CSO automatically results in a prison sentence being imposed. However, if you breach the Order then you will brought before the Court and dealt with more severely.

 

Suspended Sentence – s12 Crimes (Sentencing procedure) Act

If a Court imposes a sentence of two years or less, then that sentence may be suspended on certain conditions. Such conditions include that the suspension be on the proviso that the offender enter into a bond to be of good behaviour for a period (which should not exceed the sentence period), attend counselling and the like.

If there is a breach of the bond, then the Court decides whether to revoke the suspended sentence and may determine that the sentence be served by way of full-time imprisonment, home detention or intensive corrections order.

Intensive Correction Orders – s7 Crimes (sentencing & procedure) Act

If a Court imposes a sentence for less than 2 years, then the sentence may be served by way of an intensive corrections order.

For more information on ICOs visit our blog.

 

Home detention

If a total sentence of 18 months or less is imposed by a Court, then an application may be made to serve that sentence by way of home detention. Some very serious offences do not allow for home detention to be served. Offenders who have prior convictions for certain offences may also not be considered as unsuitable for home detention.

Imprisonment

A custodial sentence must only be imposed by the Court if no other form of punishment is deemed appropriate.

Alternatives to full time a custodial sentence may be available, for example:

–          Home detention is an alternative if the total sentence is less than 18 months;

–          A suspended sentence is an alternative if the total sentence is under 2 years; and

–          An Intensive Corrections Order is an alternative if the total sentence is under 2 years.

If you have any questions about a sentence you might receive contact our criminal law team on (02) 9653 9466.

Camera Detected Penalty Notices

If you are detected by a speed, red light or bus lane camera then you will incur demerit points on your licence.

Speed Cameras

Speed cameras measure the speed of your vehicle by either an electronic sensor embedded in the road surface, or by a radar detecting camera.

If your vehicle is detected as travelling above the legal speed limit then a digital image will be recorded showing your number plate, your vehicle type, your speed and the direction and lane you are travelling. A record will be made of the date, time, place and legal speed limit.

Red Light Cameras

Red light cameras are individual sensors that monitor each lane of travel.

If your vehicle crosses the stop line after the traffic light has turned red then the camera will take a photo of the rear of your vehicle. Another photo will be taken of your vehicle as it travels into the intersection.

The camera will also record the date, time and place.

Bus Lane Camera

A bus lane camera is actually two cameras installed by a bus lane, over 100 meters apart. These cameras will read your number plates if you travel in a bus lane.

A penalty notice will only be issued if both cameras detect your number plate.

Point to Point cameras

These cameras measure the time it takes for your vehicle to travel between two points (where the cameras are located). Your average speed will be calculated. If that average speed is above the speed limit for the road you have travelled on then you are deemed to have committed an offence.

Safety Cameras

Safety cameras detect both red light and speeding offences as you cross the stop line at an intersection.

 

For more information on driving offences contact our office on (02) 9653 9466.

Intestacy and estate distribution

Intestacy is when someone dies without leaving a valid will

When this happens, the law (The Succession Act 2004 NSW) will determine who receives money (or assets) from your estate.

For further information relating to the rules on intestacy, visit our family provisions webpage.

If your spouse has died without making a valid will you may not always be guaranteed the whole of your spouse’s estate.

Firstly, the definition of a ‘spouse’ can be any of the following:

  •  A person you are married to (this will also include a person who you are separated from, but not yet divorced from);
  • A person you have been living with for the past two years (ie in a de facto relationship with); or
  • A person who you have a child with (regardless of whether you have ever lived with them or been married to them).

This definition means that a person may die with more than one ‘spouse’.

For example if you are in a relationship with someone and you live together but you also have an ex-wife or husband who you haven’t yet legally divorced then you have two spouses.

The definition of children is also important. For example an adopted child is considered a biological child for the purpose of distribution of the estate.

 

The following examples relate to when your spouse has died without leaving a valid will. Depending on your family structure, the distribution of the estate will vary.

1. If you have one spouse and all your children are from the relationship of yourself and your spouse.

The whole of your spouses’ estate will pass to you.

This is because generally, most people will leave their estate to their spouse, on the assumption that the children will receive the benefit of the whole estate when their surviving spouse passes away.

2. If you and/or your spouse have children from previous relationships

If you belong to a “blended” family and you have step-children (children of the deceased only), then you will not receive the whole estate.

Instead, you will receive:

  • All the personal effects of the deceased;
  • $350,000.00 (as a statutory legacy); and
  • One half of the remainder of the estate.

The children of the deceased will divide the remaining one half of the estate equally between them.

In this case, you might wish to take particular assets from the estate, such as real estate that is not in your name. If so, you can choose to take that property rather than receive the $350,000.000 statutory legacy and half the remaining estate.

You can only do this if the sum of the assets equal the amount due to you as set out above.

If you wish to acquire an asset has a greater value than your allotted share of the estate, you must pay the balance with your own funds.

For instance, if the marital home is not in your name (or you do not own the property as joint tenants with your spouse), you may lose the house unless you pay the balance of its value.

3. If you and your deceased partner were in a de facto relationship for less than two years and your deceased partner has a spouse whom they have not yet divorced, and there are no children,

The married spouse will take the whole estate and you will not be entitled to any of the estate.

4. If you and your deceased partner were in a de facto relationship for more than two years and your deceased partner has a spouse whom they have not yet divorced, and there are no children,

You and the ‘married’ spouse will share the estate. Usually the shares can be determined by an agreement between you both or if you are unable to agree then the Court will make an Order. generally, the Court will order a 50/50 split, unless there are exceptional circumstances (such as if you have been in a de facto relationship for at least ten years and the married spouse has had no contact with the deceased during that time).

5. If you and your deceased partner were in a de facto relationship for more than two years and your deceased partner has a spouse whom they have not yet divorced, and there are children,

You and the spouse will have to split the personal effects, statutory legacy and half of the remaining estate between you. The children will get the remaining half of the estate.

As you can imagine, this splitting of assets can become very confusing amongst beneficiaries. A person may own many different types of assets, such as property, shares, money, and superannuation. To split this equally, the easiest way might be to sell everything. However this could have stamp duty and other tax implications for some beneficiaries as well as causing more stress and worry to you all.

To avoid this, it is very important, especially if you are a member of a split-family to ensure you make a valid will to avoid family disputes when it comes time to distribute your estate.

Contact our office today on 9653 9466 to arrange to meet with one of our Solicitors for help with drafting your will.

 Spouse’s statutory legacy

As discussed above a spouses’ statutory legacy is currently $350,000.00. This figure is adjusted according to the Consumer Price Index (CPI), to mirror current interest rates at the time of death.

The figure is calculated as follows:

CPI adjusted legacy  = $350,000.00 x (CPI index for last published quarter before death / CPI for the December 2005 quarter)

If the statutory legacy is not paid in full within one year of your intestate partner’s death, then interest is also payable to you at the relevant rate (this is 2% above the rate last outline by the Reserve Bank of Australia before the 1 January of the year that the interest begins to accrue) on the outstanding amount. The interest is calculated from the first anniversary of death to the date of full payment.

If you have a relative who has died intestate and you would like clarification on where you stand, contact us today on (02) 9653 9466.

What is the difference between Mutual Wills and Mirror Wills?

Often, spouses or partners will make basic wills that are identical to each other. For example, a simple will would leave all of your estate to your spouse/partner, and if they had died before you, then the estate would go to your children. For example:

“I give devise and bequeath the whole of my estate both real and personal wheresoever situate to my wife Jenny Jones, but if my said wife fails to survive me by thirty days (30), then to each of my children in equal shares.”

You should remember, however, that a will may be altered or revoked at any time. What happens, for instance, if after your death, your spouse re-marries and has more children. Your spouse might then change their will to leave their estate to their new spouse, and all their children. This means that your children will receive less of your estate.

This is an example of a mirror will. The wills are identical, but they are revocable.

Mutual wills differ as they are irrevocable and this means that the law will protect the second beneficiaries of the deceased’s will (for example your children) against the survivor revoking their will after your death.

A valid mutual will occurs only if there is evidence of an agreement that the wills are irrevocable.

If there is no evidence of an agreement, then on your death, your spouse takes an absolute interest in the property of the estate.

Mutual wills work as a contract between two parties, where one party relies on the other to carry out the agreement (that is, not to revoke the wills). When one party dies, they have carried their part of the agreement into execution, the agreement is then irrevocable, and the law will protect the second beneficiaries interests.

The difficulty lies in the fact that a will by its nature is a revokable document. You cannot stop your spouse from revoking their will after your death. You can however, ensure your prior agreement is considered by the Courts if a will is ever contested. For example if your spouse dies after you, and has changed their will after your death so that it is inconsistent with your prior mutual wills, it is still a valid will. Despite this, the law may, in some circumstances, protect the second beneficiaries (such as your children) through equity.

Contact us on 9653 9466 to learn more about drafting wills and estate planning.

Federal Circuit Court of Australia or Federal Magistrates Court?

Family Law can be a tricky thing to understand and it can be even more complicated when the name of the Court changes!

From 12 April 2013, the Federal Magistrates Court of Australia will be known as the Federal Circuit Court of Australia. The Judicial Officers will now be addressed as “Judge” (they use to be called Federal Magistrates).

“What does this mean for any matter currently before the Court or previous Orders made by the Court?”

The change of name will not have an effect on matters currently before the Court and it will not affect the validity of previous Orders made by the Court.

If you are unsure whether the change to the Court name will have any effect on your matter please contact Anderson Boemi Lawyers on (02) 9653 9466.

STAMP DUTY EXEMPTION/CONCESSION SCHEMES

The NSW Office of State Revenue (OSR) has a number of schemes that give some property purchasers stamp duty concessions or exemptions.

We have summarised the different types of OSR schemes to assist you. If you are unsure as to whether any scheme applies to you, contact us on 9653 9466 for assistance.

1.     Regional Relocation (Home Buyers Grant)

You will receive $7,000, which is applied as a credit or paid into your nominated account within 21 days lodgement.

To be eligible for the grant you must meet the following criteria:

  • You must be a natural person (for example not trustee or company);
  • You must be the owner/lessee of regional property AND you are also, or you were recently the owner of a metropolitan home;
  • At least one applicant must be an Australian citizen or an Australia permanent resident;
  • All applicants must have entered into an agreement to purchase a home or vacant land on which to build a home in a regional area;
  • At least one applicant must have occupied a metropolitan home as their principal place of residence 12 months before the contract date of your purchase of regional property;
  • The regional property purchase price not to exceed $600,000 (for a home) or $450,000 for vacant land;
  • Your metropolitan home must have been sold within the 12 months before purchase of your regional home or within 12 months after completion of the purchase of your regional home (which is the date of settlement of the contract);
  • All applicants must occupy the regional home as their principal place of residence within 12 months of completion of the contract (the date of settlement); and
  • You must not have already received a grant.

You must lodge your application form within twelve months after completion of the transaction (the date of settlement).

2.     First Home Owner Grant (New Home)

This replaced the $7,000 grant for the First Home Owner Grant Scheme. You will now receive a $15,000 grant, however this figure will be reduced to $10,000 for contracts entered into after 1 January 2014.

To be eligible for the grant you must meet the following criteria:

  • You must be a first time purchaser AND you must be purchasing or building a new home;
  • Each applicant must be a natural person (for example you cannot purchase the property through a company or a trust);
  • At least one applicant must be an Australian citizen or an Australian permanent resident;
  • Applicants must be over 18 years of age;
  • You and/or your spouse/de facto must not have owned a residential property before   1 July 2000;
  • You and/or your spouse/de facto must not have owned a residential property before 1 July 2000 and occupied that property for a continuous period of 6 months;
  • Each applicant must have entered into the agreement to purchase the new home on or after 1 October 2012;
  • The total value of the property must not exceed $650, 000.

You must lodge your application form within twelve months after completion of the transaction (ie the date of settlement).

3.     First Home – New Home

 If you are purchasing a New Home:

–          Where the purchase price is below $500,000 you are EXEMPT from paying stamp duty;

–          Where the purchase price is between $500,000 and $600,000 CONCESSIONS apply (to estimate the concession you will receive multiply the purchase price of the property by 0.2249 and subtract $112,450).

If you are purchasing Vacant Land:

–          Where the purchase price is below $300,000 you are EXEMPT from paying stamp duty;

–          Where the purchase price is between $300,000 and $450,000 CONCESSIONS apply (to estimate the concession you will receive multiply the purchase price of the property by 0.1049 and subtract $31,470)

To be eligible you must meet the following criteria:

  • Applicants must be a natural person (you cannot purchase through a company or trust);
  • At least one applicant must be an Australian citizen or permanent resident;
  • All applicants must be over 18 years of age;
  • You and/or your spouse/de facto must not have previously owned a residential property before July 2000 nor occupied that property for a continuous period of 6 months;
  • Each applicant must have entered into agreement to purchase new home or build new home after 1 July 2000
  • The purchase must be for the whole of property;
  • At least one eligible purchaser must occupy the property as their principal place of residence for a period of 6 months within 12 months of the completion date (the date of settlement);
  • You and/or your spouse/de facto must not have previously received an exemption or concession under the First Home – New Home scheme;
  • If not all applicants are “eligible purchasers” – then you may still qualify for a concession under the shared equity arrangements (which was formerly called First Home Plus One Scheme), but only if you as an eligible purchaser buys at least 50 per cent of the property (for more information on this see the OSR website or contact us for assistance).

You must lodge your application within three months of exchange of contracts.

4.     NSW New Home

If you are an eligible purchaser you will receive a $5,000 grant. This is applied as a stamp duty credit or paid into your nominated account

To be eligible you must meet the following criteria:

  • The grant applies to new homes, off the plan purchases, and vacant land (on which a new home will be built) purchased after 1 July 2012;
  • The new home must not have previously been occupied or sold as a place of residence – this includes substantially renovated home;
  • The purchase must be a purchase of the whole of the land;
  • The value of new home must not exceed $650 000 (or $450 000 for vacant land);
  • The purchaser does not have to be a natural person – this means that you can purchase as an entity or a trust;
  • There is no restriction on the number of times a purchaser can apply for the grant;
  • If the application is approved – no further grant can be paid in respect of that property;
  • There are no residency requirements for this grant;
  • The grant is not available for transactions which fall under the First Home – New Home Scheme or First Home Owner Grant (New Home) Scheme; and
  • The grant is not available for the purchase of an existing home to knock down and re-build new home.

You must lodge your application form within three months of exchange of contracts.

For more information and advice relating to grants that you may be eligible for when purchasing a property, contact our Conveyancing team on 9653 9466 today.

 

Stamp Duty exemptions when buying a new home or vacant land

When buying a new home or vacant land upon which you intend to build a home, you may qualify for a stamp duty exemption or concession – especially if you are purchasing your first property.

Stamp duty is a significant cost when purchasing a property, so it is important to consider whether costs can be minimised through government initiatives.

The NSW Office of State Revenue (OSR) offers a number of schemes to help first homebuyers. Benefits are available under the First Home Owner Grant (New Home) and the First Home – New Home Schemes.

First Home Owner Grant (New Home) (FHOG-NH):

To receive the FHOG-NH you must be purchasing your first new home and meet the following eligibility criteria:

  • You must be a natural person (ie. The grant does not apply to companies, trusts or superannuation fund purchasers);
  • You must be over 18 years of age;
  • At least one applicant must be an Australian permanent resident or an Australian citizen;
  • You and/or your spouses/de facto must not have previously owned a residential property before 1 July 2000 and occupied that property for a continuous period of 6 months;
  • The agreement to purchase the new home or to build the new home must have been entered into after 1 October 2012;
  • The total purchase price of the property must not exceed $650,000;
  • This must be the first time you and/or your spouse/de facto will receive this grant; and
  • At least one applicant must occupy the home as their principal place of residence for a continuous period of 6 months within 12 months of completion of the contract.

If you are eligible for FHOG-NH you will receive a $15,000 grant when purchasing your new home. This will be reduced to $10,000 for contracts entered into after 1 January 2014.

Application forms must be lodged within 12 months of completion – which is the date of settlement of the contract. If the application is lodged at the same time that the stamp duty is paid the grant may be used as a credit against the stamp duty payable, with the difference to be transferred into your nominated account.

 

First Home – New Home (FH-NH):

Rather than providing you with a lump sum payment, this scheme gives you stamp duty exemptions where the purchase price is below $500,000 and stamp duty concessions where the purchase price is between $500,000 and $600,000.

This scheme is also available to eligible purchasers buying vacant land to build their home so that no duty is payable on vacant land valued up to $300,000 and concessions apply for those valued between $300,000 and $450,000.

To qualify under this scheme, the following criteria apply:

  • All purchasers must be “eligible purchasers”. To be eligible you must meet the following criteria:
    • You must be a natural person (ie companies or other entities are not eligible purchasers);
    • You must be over 18 years of age;
    • At least one applicant must be an Australian permanent resident or an Australian citizen;
    • You or your spouse/de facto must not have previously owned a property or received some benefit before;
    • The contract for purchase must be for whole property; and
    • At least one purchaser must occupy the new home for a continuous period of 6 months within 12 months of completion

FH-NH applications are to be lodged within 3 months of exchange of contracts – that is the date shown on the contract.

For more details please see our blog on eligibility criteria, lodgement and operation dates, or alternatively contact our Conveyancing team on 9653 9466 for help.

NSW Alcohol Interlock Program

The Alcohol Interlock Program is a program to allow people convicted of drink driving to resume driving and was introduced in 2003. The program incorporates rehabilitation as part of the sentence imposed by the Court.

The program generally applies to serious alcohol-related driving offences. If you have been convicted of a serious drink driving offence you may be eligible to receive the option to suspend part of your disqualification period, if you:

  • Complete a reduced disqualification period;
  • Have an RTA approved alcohol interlock device installed in you car by an RTA approved interlock installer; and
  • Obtain a NSW C-class (car) driver licence with an interlock licence condition (which states that you ‘may only drive a vehicle fitted with an approved interlock device’).

If the Court considers you suitable for the interlock program then an electronic breath-testing machine will be connected to your vehicle’s ignition. This means that the car will only start if you pass a breath test. You must pay the costs involved in installing the device.

The program is voluntary. If you are convicted of drink driving you do not have to participate in the program, you can serve the full disqualification period.

Entry into the program signifies a personal commitment to rehabilitation and you (or your lawyer) must request that the interlock penalty be considered at the time of sentencing. If the Court considers it to be an appropriate sentence for you, they will make an order that has the effect of reducing your disqualification period, but imposes a longer period where you must comply with the interlock program.

The Court will consider issuing an interlock driver licence order for most drink driving offences.

To find out if the program would be suitable for you, contact our criminal law team on 9653 9466 today.

 

High Range Drink Driving

A high range drink driving (HPCA) charge is one where the prescribed concentration of alcohol in your blood is 0.15 or more. A HPCA charge carries with it an automatic disqualification period of three years.  The minimum disqualification period that the Court may order is a period of twelve months (for your first offence). Only in special circumstances will the three year period be reduced.

If you are found guilty of an offence of HCPA for the second time in five years, the automatic disqualification period increases to five years (minimum three years).

In some circumstances your lawyer may submit to the Court that you be found guilty, yet the charge against you be dismissed without any conviction recorded pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. This s10 Order is rarely appropriate for a HPCA charge, although not impossible to achieve.

As a result of previous inconsistency amongst Courts, increases in the application of s10 orders and a perceived leniency in sentencing, a ‘Guideline Judgement’ was introduced in 2004 by the Criminal Court of Appeal for the offence of Drive with a High Range Prescribed Concentration of Alcohol.

When sentencing offenders, Courts must follow the guideline judgement, which is based on the ‘ordinary’ offender.

You will be classed as an ‘ordinary’ offender if you meet some (or all) of the following criteria:

–          You drove to avoid inconvenience, or believed that the you were not over the limit;

–          You were detected by random breath test (rather than as a result of the manner of your driving);

–          You are (otherwise) deemed to be of good character;

–          You have a clear or limited traffic record;

–          Your licence was suspended on detection;

–          You pleaded guilty;

–          There is little risk of you re-offending;

–          You will suffer significant inconvenience for the loss of licence.

In an ‘ordinary’ case of an offence of high range PCA the automatic disqualification period for HPCA (three years) should be appropriate in most cases, unless there are significant reasons to reduce the disqualification period.

Such reasons include the following:

–          A need for a licence for employment (for example if you are a truck driver or courier),

–          Limited alternative transport (for example if there is no viable public transport in your area); or

–          Sickness,

The Court also noted that a conviction will not be avoided only because you have completed a Traffic Offenders Course.

Of course, if this is your second or subsequent offence of HCPA then the penalties are more severe.

When determining your sentence the Court will consider your moral culpability. They may find you more morally responsible, and therefore consider a more serious sentence, in the following circumstances:

–          How high your blood alcohol concentration is;

–          You were caught driving erratically or aggressively;

–          You collided with another vehicle;

–          You were racing, or showing off;

–          The length of the journey where other people were at risk; and

–          Who was actually put at risk by your driving.

If a number of these circumstances apply to you, then depending on the severity, you may be subjected to a suspended sentence, or even a custodial sentence.

If you have been charged with a drink driving, contact our criminal law team today for assistance.