The Supreme Court of Queensland has reaffirmed the law that a debtor only has 21 days to file and serve an application to set aside a creditor's statutory demand, regardless of whether the Christmas/New Year period that falls within the 21 days. ...
Intergenerational Transfers Affected by Changes to the Duties Act 2001 (Qld)
New transfer duty concessions will now be available for transferees, particularly in relation to intergenerational transfers of prescribed and primary production businesses, pursuant to the Queensland Government’s welcomed changes to the Duties Act 2001 (Qld) .
How does this affect eligibility?
Transfer duty concessions are now available for primary production businesses or prescribed businesses. A primary production business is a business of agriculture, pasturage or dairy farming. A prescribed business solely involves one of the following business activities:
- excavating and earthmoving
- picture framing
- processing and packaging
- printing and publishing
- boot and shoe repairing
- retailing and wholesaling (whether or not it involves repairing or installing goods sold)
- undertaking or funeral directing
- other (being beauty salon or barber shop, bus service, cinema, crematorium, engineering workshop, laundry or laundrette, newsagency, travel agency or real estate agency, repair and service workshop, rental business, restaurant or café, service station, sports complex or gymnasium, warehouse or bulk storage complex).
If eligible, no transfer duty is payable if the business property carries on a primary production business. If residential land, which is adjacent to the land used to carry on a primary production business, is transferred under the same transaction then no transfer duty is payable. Unfortunately, transfer duty on water allocations still must be paid.
If the business is a prescribed business, transfer duty rate must be applied to any purchase. Here, transfer duty is payable on business property worth $500,000 or more. For example, if a property is worth $750,000, duty is payable on $250,000 (being the amount above $500,000). A list of transfer duty rates is available at the Queensland ...
Body Corporate Management Case Study: The Most Expensive Balcony In Queensland?
The High Court has recently overturned a Queensland Court of Appeal decision to find in favour of a body corporate, which was fighting an owner’s attempt to use common property airspace to expand two balconies in his apartment.[i] The essential issue before the High Court was whether the body corporate had acted reasonably in refusing the owner’s request.
Always get advice from a reputable property lawyer if you face challenges with body corporate management.
Body corporate case study – background
An owner at Viridian Noosa Residences wanted to join his two existing balconies, and the space in between them, to create one deck. To do so, he required the exclusive use of common property airspace - 5m2 - between the two balconies.
To proceed with the extension, the owner needed a resolution without dissent at a general meeting of the Body Corporate. In August 2012, the owner put his motion at an extraordinary general meeting, however some lot owners voted against it.
The owner then applied to the Commissioner for Body Corporate & Community Management arguing that the Body Corporate acted unreasonably in voting against the motion. In September 2013, the Commissioner found that the Body Corporate had acted unreasonably and allowed the owner to proceed with the work.
In response to the Commissioner’s decision, two of the dissenting owners appealed the decision to the Queensland Civil and Administrative Tribunal (QCAT). In October 2014, QCAT overturned the Commissioner’s decision stating that the decision of the Commissioner’s had the effect of “overriding the will of a substantial majority of owners”.[i]
The owner appealed QCAT’s decision to the Queensland Court of Appeal who found, in November 2015, that the Commissioner’s decision was not wrong in law and QCAT should not have set it ...
What Does Without Prejudice Communication Mean?
There may be no other legal phrase that is more misunderstood and abused, by bush and city lawyers alike, than the phrase “without prejudice”. Even where parties are not actively resolving a dispute, it is not unusual to see emails or letters emblazoned with the words “without prejudice”, usually in all-caps, perhaps even underlined and in bold for good measure.
Some common misconceptions about the phrase “without prejudice” include:
1. The phrase must be written in capitals and marked to stand-out (e.g. “WITHOUT PREJUDICE”), otherwise it won’t apply.
2. If writing a letter of demand, you should mark the letter “Without Prejudice”, even though you’re not making any concessions or reducing the debt.
3. If sending a letter to try and finalise a contract (e.g. sale of a business) through genuine negotiation or compromise, you should mark the letter “Without Prejudice”, even though the contract is not a settlement of a dispute.
4. Once your email or letter is marked “Without Prejudice” then that correspondence (regardless of the content) is protected and cannot be used against you in Court proceedings.
5. Even if you mark a letter as being “Without Prejudice”, you can elect whether to refer to that letter in subsequent Court proceedings, as it is your letter.
What is a Without Prejudice Communication?
The “without prejudice” privilege applies to communications (verbal or written) made or created in the course of genuine attempts to negotiate a settlement of a civil dispute.
The communication must be a valid and genuine negotiation between parties with an intention to settle a dispute. If negotiations fail, the communication cannot be used in any subsequent Court proceedings without the consent of both parties. It is a joint privilege that protects equally the maker and the recipient of the communication, it cannot be waived unilaterally.
What is the effect of the privilege?
The purpose of the rule is to ...
Australian Sellers Beware! 3 Things You Need To Know About The New Withholding Tax Regime
From 1 July 2016, new legislation requires Australian residents selling real estate and other assets with a market value of $2million or more to obtain a clearance certificate from the ATO by settlement. The aim of the new withholding tax regime is to protect the integrity of the foreign resident capital gains tax regime, by ensuring that foreign sellers do not escape their liability to pay capital gains tax.
What is the new law?
The new law applies to certain assets worth at least $2million, including:
• real property (land, buildings, residential and commercial property)
• lease premiums and mining, quarrying or prospecting rights
• indirect interests in an entity that hold such assets
• an option or right to acquire such assets.
Should each seller within a transaction fail to provide a valid clearance certificate by settlement, the buyer is required to withhold 10% of the purchase price which is payable to the ATO immediately after settlement.
How does it work?
At the crux of this new legislation is the requirement that anyone selling property or assets in this cost bracket must obtain a clearance certificate, which confirms that the withholding tax is not to be withheld from the transaction. A seller must apply to the ATO for a clearance certificate and provide it to the buyer by the settlement date of the transaction. A seller’s failure to meet this deadline will cause a deduction in the sale proceeds, as 10% of the purchase price will be paid to the ATO.
A seller may apply for a clearance certificate at any time they are considering the sale of property, even before the property is listed for sale. The clearance certificate will be valid for 12 months and must be valid at the time the certificate is given to the buyer prior to settlement.
There are a number of forms, in relation to the clearance certificate, which are available from the ATO’s ...
Where a creditor is owed at least $2,000 by a company, the Corporations Act 2001 (Cth) contains a powerful mechanism to recover that debt: a Creditor’s Statutory Demand (statutory demand).
A statutory demand is essentially a notice to a debtor company that it is required to pay the debt(s) set out in the statutory demand within 21 days of service, or a presumption of insolvency will arise. This presumption allows the creditor (or anyone else for that matter) to take immediate steps to wind-up the debtor company.
To issue a valid statutory demand, the Corporations Act requires:
- the debt(s) to be at least $2,000;
- the demand to be in the prescribed form;
- the demand to be supported by an affidavit that verifies that the debt is due and payable (unless the debt is a judgment debt, i.e. Court ordered); and
- there must be no “genuine dispute” about the debt.
Once a statutory demand has been served on the company, the debtor must either apply to the Court within 21 days of service (without exception) to set it aside or pay the debt.
If the debtor applies to the Court to set the statutory demand aside, the debtor has to satisfy the Court that:
- a “genuine dispute” exists;
- it has a counter-claim or some other claim that can be off-set against the debt;
- a defect in the statutory demand would cause “substantial injustice” to the debtor; or
- there is some other reason why the demand should be set aside.
All that is required for a “genuine dispute” is that the debtor has a “plausible contention requiring investigation”, but it cannot be “fanciful” or “far-fetched”. The dispute must truly exist in fact and the grounds for the dispute must be real and not hypothetical or misconceived.
If the debtor company ignores the ...