Recently, the Commissioner of Taxation sought a statutory indemnity from directors of a Company under the Corporations Act 2001 (Cth) (‘The Act’) because amounts paid had been applied to the Company’s tax obligations.

The Company’s director attempted to rely on statutory defences under the Act and
argued that:

• He had reasonable grounds to expect that the Company was solvent and would remain solvent even if it made the payment.
• He had reasonable grounds to believe that competent and reliable persons (an
  accountant and internal employee) were responsible  for providing him with adequate financial information about solvency.

The director had been concentrating on developing income streams for the Company
and he “thought” others were looking after the financial side of things.

The NSW Supreme Court held that the “financial records of the company were in
an  unacceptable state”, and that because of this, no reasonable grounds were established on which the director could reasonably expect that the Company was solvent:  he was  Ordered to pay $70,000.00.

It is important that:

• good financial records be maintained to monitor the company’s solvency.
• directors must read, understand and inform themselves as to the company’s financial position.

King Cain can assist you with Business or Company  matters. If you have a matter you wish to discuss feel free to phone Paul Carver or Kel Graham, on 63334400 or come into our office at Level 1, Suite 4  90 Keppel Street, (cnr Keppel & Bentinck streets) Bathurst NSW 2795 to arrange an appointment.

This is often not the case, even though there may be mandatory penalty provisions
that apply.

The penalties for Drink Driving are severe and include gaol for all but driving
with the low or novice range of offences.  In all cases there is an automatic period of disqualification and for High and Mid Range offences unlimited maximum periods.

Even though there are minimum disqualification periods applicable, whether or not
the Courts impose the minimum is a matter to be decided in each individual case.

There are a number of circumstances in which it is possible to argue:

• To backdate the disqualification to the date of the offence, as opposed to a
  date of sentence which could be several weeks later.
• That there may be grounds to reduce the charge from Mid Range to Low Range or
  High Range to Mid Range.
• The charge itself can be defended on the basis that you did not have the level
  of alcohol in your system at the time of driving.
• That the test was otherwise improper or illegally obtained.

Drink Driving offences are rightly to be taken very seriously, and King Cain does not
condone Drink Driving.  However people can and do make genuine mistakes and every individual is entitled to know their legal rights.

First consultation free

Do you need assistance with:

• Recovery of damages
• Medical Law
• Advice on the strength of a claim
• Amount of compensation you may be entitled to
• Your rights if you work in a Coalmine?
• Dispute with an insurer

Utilise the benefits of the combined knowledge, experience and expertise of King Cain Solicitors and Taylor & Scott Lawyers.

In recent years our Firm has formed a relationship with Taylor &
Scott Compensation Lawyers.

Taylor & Scott Compensation Lawyers is a Firm based in Sydney with offices at Sydney, Lidcombe, Campbelltown, Newcastle and Wollongong. It has a long history of helping people with compensation law matters. The firm has been in existence for over 100 years. It has a number of Solicitors who are accredited by the Law Society as specialists in their area of work. For more information  you can visit their website; www.taylorandscott.com.au

Rather than having our clients travel to Sydney, our arrangements with Taylor & Scott Compensation Lawyers has them attending at our offices on regular visits to service our clients.

For a confidential meeting contact Michelle Hibberson at King Cain
Solicitors on (02) 6333 4400 to make an appointment for your free consultation.

Have you been properly looked after?

When someone close to you dies, it is always a difficult time. What’s often more upsetting is to discover that the deceased has not left you a fair share of their estate.

There are very good reasons why someone should contest a Will. For example, the law allows family members, de facto and same sex partners or anyone else who can show they were financially dependant on the deceased to challenge a Will if they believe the Will to be unfair.

Wills can also be challenged if the deceased lacked the mental capacity to understand what they were signing or where they may have been influenced to sign a Will that did not reflect their wishes.

As the Executor of an estate, you may have received a Notice of an intention to dispute a Will.  You must seek legal advice immediately if you have received a Notice like this.

At King Cain, we have a number of experienced lawyers to work with you and advise
of the legal options and avenues available.

It is essential that you obtain legal advice without delay as there are strict time limits in making claims.  The time limit that applies to your claim may vary.

If King Cain can assist you in any legal matter, please contact us on 6333 4400 or
call in and see me, Kelvin Graham at our offices at Level 1, Suite 4/90 Keppel Street Bathurst for an appointment

The ability to obtain information quickly with the minimum of fuss is important to everybody in today’s world.

Gaining access to information can still be very frustrating and despite access to all
the forms of communication we have now, people need simple, effective means of locating
services and contacting their friends and people they rely upon.

You may have seen codes like this at large retailers and more recently on Real
Estate ‘For Sale’ signs.

At King Cain, we believe that providing a means of accessing information quickly
is essential.  That’s why we have now provided our clients with our own unique “QR Code” so that people can quickly access information and contact us.

QR Codes were first created by Toyota back in 1994 to track vehicles during the manufacturing process.  Our code provides you with easy access to ourwebsite, general information, contact details and location. We have also integrated the technology in providing easy access to our clients for their own specific and secure log on site at our website, where they can access correspondence and information from their smart phone or computer.

Try the code above and be surprised.  You can download the software free from the internet to your smart phone.

King Cain, continuing to provide the highest level of expertise and service with integrity for your legal solutions.

If we can assist you in any legal matter, please
contact us on 6333 4400 or use the QR code above to find out more about our
services.

However, the NSW State Government has just announced that these schemes will close on 1^st January 2012.  The schemes are to be replaced by ‘First Home – New Home Scheme’. From 1^st January 2012, First Home Buyers will only receive a concession or exemption from Stamp Duty if they purchase a new home or vacant land that is to be used to construct a new home within 26 weeks of the Contract date. In other words, first home buyers will no longer be able to claim a concession or exemption from Stamp Duty for the purchase of their first home that is not new.

Therefore, if you are thinking of purchasing your first home, it is important that you do
this before 1^st January 2012, in order to claim a concession or exemption from Stamp Duty under the ‘First Home Plus’ and ‘First Home Plus One schemes’.  On a $400,000.00 home, you could on average save $13,510.00 on stamp duty and associated fees.

There may however be other concessions and exemptions from Stamp Duty that you could be eligible for. These include the existing ‘First Home Owners Grant’, NSW Home Builders
Bonus and the ‘Relocation Grant’.

Nick Johnson specialises in Conveyancing and related matters and can assist you if you are buying or selling your home. Feel free to phone Nick on 6333 4400, or call into our office at Level 1, Suite 4, 90 Keppel Street Bathurst for an appointment.

Easements, do you understand how they affect you?

An easement is the right of one land owner (dominant tenement) to utilize another persons land (servient tenement) for certain beneficial purposes.  Two examples are a Right of Way and an Easement for Services such as drainage, sewerage, telephone and electricity. Easements are usually created in writing using a Section 88B
instrument, which is then registered at the Land and Property Management Authority and noted on both Certificates of Title. Therefore, the owner of the dominant land has an equitable interest over the serviant land.

The law can be fairly uncertain in regards to who is responsible for maintenance and care of the easement. The common law states that if the person holding the dominant tenement wants the easement repaired or maintained, they usually have to attend to it themselves. Therefore, they are entitled to enter upon the land to repair or maintain the easement, but not to upgrade or improve the easement.

Although the holder of the serviant tenement is not obliged to maintain or repair the easement, the dominant tenement may lodge a positive covenant on title,compelling them to attend to repairs. However, this requires agreement and could potentially be time consuming and expensive.  Also, a positive covenant does not bind future successors on title of the servient land.
So who makes the bed in the morning? Maybe it’s a shared responsibility.

Nick Johnson specialises in Conveyaning and related matters and can assist you if you are buying or selling your home. Feel free to phone Nick on 6333 4400, or call into our office at Level 1, Suite 4, 90 Keppel Street Bathurst for an appointment.

Recently the NSW Government replaced Periodic Detention with Intensive Correction Orders (ICOs) as a sentencing option instead of full time gaol.

An ICO is an order of imprisonment for not more than 2 years made by a court which directs an offender serve the sentence by way of Intensive Correction in the Community.

Unlike periodic detention an ICO is non custody based option and includes community service and may include supervised rehabilitation.

There are many mandatory conditions imposed on an offender including: conditions as to where they may live; that offenders submit to breath testing, urinalysis or other testing when  requested to do so; and searches of places or
things under their control; that the offender comply with requests by a
supervisor to remain in a place for certain hours (a curfew).

There are also additional conditions which may be imposed by the sentencing court including: orders to accept direction of a supervisor in relation to maintenance or obtaining of employment; a condition that the offender may not consume alcohol; and conditions not to attend certain places or districts.

So are ICO’s a soft option?
Given the mandatory and additional conditions which may be imposed, combined with the  length of the orders and technical  requirements, such as an offender  being required to  live within 100kms of a supervising office, and have a working landline to which a modem is not connected, for some people ICO’s are more onerous than a custodial sentence.  But it is still not a custodial sentence
which means a lot.

Do you know everything about your new home?

Under the standard Contract for the Sale of Land, the Purchaser takes the property as it is.  For example, the Purchaser normally has little claim regarding quality issues, such as a ceiling fan that is not in working order or the condition of the property generally. That is why a prudent purchaser will make a number of pre- purchase enquiries such as obtaining pest and building reports, survey etc.

However, statutory requirements do obligate the Vendor to promise to the Purchaser that unless specifically disclosed otherwise in the Contract;

1.         The land is not subject to any adverse affectation from a government             department,

2.         The property does not contain any part of a sewer to a recognized sewerage             authority,

3.         The Zoning Certificate reflects the true status of the land,

4.         There is no matter that would justify Council making an upgrade or demolition  order on any dwelling on the property.

Although the Vendor has strict obligations of disclosure, you still need to investigate
the property by having a Pest and Building Inspection and possibly a Survey completed before you sign on the dotted line.  In this respect, it is still ‘buyer beware’.

The Vendor cannot contract out of their obligations.   However,
if the matter is expressly disclosed in the Contract, you can be precluded from
making any claim.  If the Vendor has breached a statutory requirement, you will normally have the right to rescind the Contract, but you cannot require the Vendor to rectify the breach.

Talk to your solicitor about your rights and obligations to disclosure when buying and selling property.

Our Conveyancing Solicitors have been acting for the Bathurst community in conveyancing transactions for over 40 years and have an intimate knowledge of all the little traps that less experienced solicitors or conveyances may miss.

Call us for a quote or to discus your next purchase or sale. We are happy to help.

As from 1 July 2011, the State Government of New South Wales introduced the ‘Regional Relocation Home Buyers Grant’. This scheme will operate for four years, in order to encourage more people to live in regional areas.

Eligible applicants may be able to receive $7000.00 to assist with Conveyancing and other expenses of relocating from a metropolitan area to a regional area like Bathurst.

Applicants must be an Australian Citizen and have owned their own home in a metropolitan area within a 12 month period before the exchange of Contracts for the purchase of a regional home. The purchase of a regional home must not exceed $600,000.00 and the applicants must occupy the regional home as their principal place of residence for at least 12 continuous months immediately after the purchase.

However, the grant does not apply to companies, trusts, shared arrangements, homes used for other purposes such as a business, or if you are currently renting your metropolitan home. The purchase of vacant land in a regional area also falls
outside the criteria for the grant.

 
But beware. If you are unable to sell your metropolitan home or reside in your regional home as your principal place of residence for 12 months, the grant may need to be repaid. Talk to your solicitor to see if you qualify for the new grant, or if you are unable to meet your obligations under the grant.