FAQs

Conveyancing and Commercial

WHY DO BUYERS OF A PROPERTY OR BUSINESS NEED TO DO SEARCHES?

Doing proper searches will ensure that any defect in the title, charges against the property or equipment, other outstanding debts, requisitions issued by government bodies are discovered prior to settlement of the purchase. If the searches reveal a problem then for a substantial defect in the title to the property the purchaser may elect to terminate the contract. For other defects, the buyer should be able to negotiate a monetary adjustment in their favour or request that any requisition is rectified by the Seller before settlement.

Why is Transfer Duty (Stamp Duty) sometimes payable even before the Contract settles?

Transfer Duty (formerly known as Stamp Duty) is payable on a dutiable transaction on or before 28 days from the date the Contract becomes unconditional. That is even so even if the Contract does not actually settle for months or years after. If you don’t pay transfer duty on or before the due date and choose to pay the transfer duty at settlement date instead you will be liable to pay for interest in addition to the transfer duty amount.

What is the limitation period for suing a person or corporate entity for a debt?

Generally the limitation period is 6 years.  There are exceptions to this statutory limitation (for example if the debt is incurred by a deed—such as a mortgage in which case the limitation period can be as long as twenty (20) years.)  If you think that a debt owing to you it is a wise idea to contact us because there are various exceptions where an action to claim for a debt can be instituted when it seems like the debt after the limitation period expires.

Family Law

When can I apply for a Divorce?

You can apply for a divorce if your marriage has irretrievably broken down and you have been separated and have been living separately and apart for a continuous period of at least twelve (12) months. This separation period can also include time spent living under the same roof with your spouse provided that you do not live as husband and wife.

Does both husband and wife have to apply for divorce together?

No.  Either party can make a sole application for divorce as long as you have separated for 12 months.  However, if you make a sole application then you must serve the other party with the divorce application at least 28 days before the court hearing date.
You can also make a joint application for divorce.
You can make an application for divorce if you or your spouse:

  • regard Australia as your home and intend to live in Australia indefinitely, or
  • are an Australian citizen, or
  • Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

When must I commence proceedings for property and spousal maintenance?

You may commence negotiations or alternatively file an Application to the Family Court for property settlement immediately upon separation from your partner.

Financial claims in de facto relationships can be made if the relationship was for a period of at least two years and/or there is a child of the relationship and/or a party makes substantial contributions to the other party’s property.  A financial claim for a de facto relationship must be filed within two (2) years after the de facto relationship ended.

After a divorce has been granted, the parties must resolve or institute proceedings for property settlement and spousal maintenance within twelve (12) months; otherwise you will need to make application to the Court to seek leave to do so.

Property settlements are determined by an Order of the Court or in the form of an agreement such as a ‘Consent Order’ or a ‘Binding Financial Agreement’.   Unless this has occurred, one party can institute proceedings in the future to make a claim against the other.

When can I apply for child support?

You may lodge an Application with the Child Support Agency immediately after separation to have maintenance assessed for your child if you are unable to reach an agreement with the child’s other parent.

Traffic Offence

I’m going to court for drink driving but I need my licence to work, what should I do?

Depending on your circumstances, you may be eligible for a restricted (work) licence. To obtain this licence you will have to show the court that you are a fit and proper person to hold a driver’s licence and that you will suffer severe financial hardship if the licence is not granted such as losing your job. You will be unable to make this application if you have had your licence suspended or if you have lost it for any reason in the last five years, or if your BAC reading is equal to or more than 0.15 . You will also need to provide evidence from your employer to support your application.
If you think you qualify your best option is to contact this office so we can guide you through the application process. To see if you are eligible, please make an appointment to discuss this with this office.

Wills and Estate

Do I need a Will?

If you are over 18 years old and you own assets, we recommend you to have a Will.  A will is a testamentary document which states your intention of how you wish to deal with your estate (your real property, money, shares, goods and chattels etc.) after you have died. Without a will your property is divided up in accordance with the Intestacy rules under the Succession Act, and this may not be the way that you want your property to be distributed.

A will also appoints an executor who is a person that you know and trust to look after and carry out  your wishes, without a will you have no control over who will oversee the process.  and,  if you have children under the age of 18 years under will you can appoint a guardian for those children who will look after them both physically, emotionally and spiritually in the way that you would have cared for them yourself.

What is Probate and when is it needed?

Under a will you leave your property as you wish, but, what if there is a later will?

Probate is the process by which an executor makes application to the Supreme Court.  The existence of the will is advertised in the local and legal press, and copies of the advertisement are given to the Public Trustee.  If the Court does not receive a response to the advertisement (by a person who disagrees with the will filing a caveat) then the will is taken to have been proved (hence Probate) and the executor can deal with the matters under your will and the entities which hold your assets can deal with the executor without worrying about whether there is another later Will which has not been discovered.

Can a will be challenged?

There are provisions under the Succession Act pursuant to which a dependent child or spouse (including a de facto spouse) and in some instances a sibling who feels that they have not been fairly dealt with under a Will can make application to the District Court (if the value of the Estate is under $750,000) or to the Supreme Court (if the value of the Estate exceeds $750,000),
The application must be made within 9 months of the date of death (but the court can extend this period).

There have been many cases where the Court orders an applicant who has been named in a will, or even not named therein, but to whom the court believes (based on settled principals) should receive a benefit under a will.  In these cases the court will alter the beneficial provisions under a Will and make orders in favour or the applicant.

If you feel that you have been unfairly dealt with by a deceased parent or spouse under their will kindly contact us to discuss your options.

General Questions

How much will my service cost?

Many of the services we offer such as commercial law services are available for a set fee. In these cases, you will know in advance.

When a set fee cannot be given to you, such as in litigation cases, we can give you an estimate prior to commencing work.

When you call to arrange an appointment we can discuss this in more detail based on your needs.

What languages are available?

In addition to English we offer our services in Chinese (Cantonese & Mandarin) and Vietnamese.

Can I just hire a translation service?

Yes, if you are looking to hire a translator, our NAATI qualified translators can help you out.

Are Justice of the Peace (JP) services available?

Yes, JP services are available at our office. Please phone ahead to organise assistance and avoid unnecessary waits