Crime?

What is a Crime?  There are many Crimes or Offences. A lot are contained in the Crimes Act but many more are contained in other Statutes both of the State and Federal Parliaments.  The range of Offences vary from Murder down to Parking.

Most criminal matters are commenced by the Police or the Director of Public Prosecutions by way of Court Attendance Notices (formerly known as Police Charges/Summonses) and those charged with an Offence will appear firstly before a Magistrate sitting in a Local Court.  In some cases issues of Bail may need to be considered.

Magistrates deal with over 90% of criminal matters summarily but the more serious offences are committed to the District Court or Supreme Court for Trial before a Judge and/or Jury.

Unlike Civil Matters, Criminal matters must be proved ‘beyond reasonable doubt’ having regard to the elements of the Offence.  This is when a Solicitor’s professional knowledge becomes essential for the client (i.e. the person charged with an Offence).

Police will normally have a fact sheet (which is not evidence but outlines the Police case) on the occasion of the first appearance before the Court. With the fact sheet and instructions from the client, this will help the Solicitor in deciding whether to advise the client to plead guilty or not guilty having regard to the elements of the Offence. Sometimes an adjournment is necessary to obtain further information.

Once a plea is entered, then the Magistrate may adjourn the matter for hearing, sentence the client, commit the client for Trial in a higher Court or other options which may  depend on the seriousness of the Offence and the previous criminal history of the client.

For further information contact us.

Finders are not Necessarily Keepers

The common law rule is that if you find something of value and you take all reasonable steps to find the owner but fail, then you may be able to keep the goods. There are various adaptations of this rule, depending on state-to-state legislation, but the principal remains the same.

You must report your find to the authorities (usually the police) who then search for the owner. In some jurisdictions there is a legal obligation to report the find and deliver the goods to the authorities for safe-keeping. After a prescribed period of time, if the owner cannot be traced, the goods are returned to the finder who may keep them.

Recently a Sydney bank clerk claimed that he found $250,000 lying in the street. He did not report the find, but a work mate, who noticed some of the money in a bag under the clerk’s work-desk, did. He rang the police. The police took the money in the bag and subsequently found the balance of the $250,000 in a safe custody box at a different bank. The bank which employs the clerk has no money missing. The clerk was charged with larceny (stealing) by finding and faces a large fine or up to 5 years in gaol.

The money remains unclaimed. Who gets it?  Had the clerk reported the find to the police, it would be his. As he has been charged with a crime over the money, then it may be forfeited to the Crown as  proceeds of crime.

For further information contact us.

Is There any Advantage in Creating a Testamentary Trust?

Such a trust is created by a will. It takes effect when the trust creator (the settler) dies. Other trusts, such as discretionary or unit trusts, are created by a deed and come into effect as soon as the settler executes the deed and settles property upon the trust. In all cases the settler must appoint a trustee. In the case of a testamentary trust, the trustees may be the executors of the will, but need not be. The trustee may be one or more natural persons or a company.

With an ordinary trust, the settler or other parties must give assets to the trust. In the case of money, there is no problem, there is no tax or stamp duty on money. However, if property, shares, real estate, bonds or a business is being transferred, then tax and stamp duty issues arise. Such expenses as capital gains tax, stamp duty, income tax and others may be involved.

Additionally, income under an ordinary trust allocated to a person too young to control it is taxed at a special high rate. This penalty rate can be as high as 66% of the income. The test is not the legal capacity of the child, but whether or not the child can control its funds.

In the case of a testamentary trust, there is presently no tax on assets allocated to the trust by will and usually no stamp duty. In addition, income allocated to a child is taxed at the marginal tax rate applicable to the amount of the income.

For further information contact us.

Attention Purchasers of Land!!

More Red Tape has been put in place by the Office of State Revenue as from 21st June, 2016 in respect of Residential Land purchases.  Identifying transfers to foreign nationals so as governments may impose additional Duties and Taxes on foreigners is the reason for the new rules.

Foreign nationals will have to pay 4% extra on the normal stamp duty applying to residential land.  Land Tax Surcharge on Foreign nationals also applies at .075% of the value of the land and there is no threshold.  It also seems that Land Tax (which is levied annually) may also be payable by existing residential lands held by foreign nationals.

Exemptions apply to Australian Citizens, some New Zealand Citizens and Foreign nationals who have resided in Australia for 200 days or more in the last 12 months provided they complete an 8 page form.

The ‘Purchaser Declaration’ form needs to be completed on entering a Contract for the purchase of residential land so as to obtain an exemption from these Duties and Taxes. Australian Citizens will need to provide a copy of an Australian Birth Certificate or Passport or Citizenship Certificate.  Kiwis will require their passport and a special category visa and long term foreign nationals will need to provide evidence of their residing in Australia for 200 days or more.  Corporations will need a lot more paper work to obtain an exemption or partial exemption.

All-in-all, the bureaucrats are putting more obstacles in front of Purchasers of land and you need to be guided through this maze by your solicitor.

For further information contact us.

GREEN SLIP CHANGES

A state wide campaign highlighting the key benefits that will be lost under the NSW Government's proposed changes to CTP Green Slip Insurance has been launched by the Law Society of NSW.

"CTP Changes Adding Insult to Injury" aims to increase public understanding of the key benefits currently covered by their CTP Green Slip insurance.

President of the Law Society of NSW, Gary Ulman, said that behind the headline of reducing premiums, the Government is set to slash cover.

"Only a few people in the community are aware what little coverage and support they will get if under the proposed changes that are due before Parliament in a matter of days," he said.

"In most cases benefits will be slashed after as little as five years, including compensation for past and future lost earnings, medical treatment expenses, and family care and support - all of which is available under the current CTP Green Slip scheme.”

Mr Ulman said that under the proposals, for example, loss of earnings will be restricted to 5 years and capped at 1.5 time Average Weekly earnings.

"This is particularly harsh for those who are injured but who have a long working life ahead of them. It also singles out those who rely on their physical fitness to earn a living - such as tradies," Mr Ulman said.

"Under the proposed scheme most benefits will also be drip-fed to injured motorists by the insurers and based on a complex and rigid system that doesn't take account of people's personal or family circumstances," he said.

Mr Ulman said the scheme also restricts access to legal assistance will also be denied for up to 90 per cent of injured motorists.

"Injured motorists should be able to access expert help to get the benefits they deserve and not left to fend for themselves against well trained insurance company representatives," he said.

The Law Society of NSW and other stakeholder have put together an alternative proposal that will reduce fraudulent claims and deliver savings on CTP green slip insurance without slashing the benefits of injured motorists and their families.

For further information contact us.

BANKRUPTCY....what happens?

Upon being made a Bankrupt, your house maybe sold, your bank account (if it has credit funds) belongs to your Trustee in Bankruptcy, your business may be sold by the Trustee, your shares in companies go the Trustee, any tools of trade above $3700 goes to the Trustee and any other assets go the Trustee except for personal items and most household goods.  The Trustee will try and convert all assets into cash and after deducting his or her fees distribute such funds (if any) to creditors.

You will not be allowed to be a Company director, nor stand for public office or continue in public office.  You maybe able to continue to work for a wage or salary and depending on the level of the wage or salary you might have to make regular repayments to the Trustee.

Bankruptcy lasts for 3 years unless it is extended by the Court.

What happens after discharge?

Your name will appear on the National Personal Insolvency Index forever as a discharged bankrupt and on credit reporting agencies' records for 2 years from the date of discharge, or up to 5 years from the date you became bankrupt, whichever is later.

If there is property that vested in the trustee when you became bankrupt and it has not yet been dealt with, you don’t automatically get it back.

The administration of your bankruptcy may continue after you are discharged – for example, your trustee may not have finalised investigations or the sale of assets, or you may still have income contributions to pay. The Bankruptcy Act says that a discharged bankrupt must still:

• assist their trustee to finalise the administration of the bankruptcy
• advise their trustee of any change of address
• provide information about their financial circumstances if requested to do so
• pay outstanding income contributions.

You also have continuing obligations to:

• give up secured assets if required by the relevant secured creditors
• pay debts that are not released by bankruptcy...e.g. penalties and fines.

For further information contact us.

Noise Pollution

Everyone has experienced at some time nuisance noise coming from a neighbour’s property. What to do? It depends on the type and frequency of the noise. The Protection of the Environment Operations Act (POE) sets out in considerable detail regulations which apply to all sorts of domestic appliances and machinery, internal and external. It deals with such things as air-conditioners, lawn mowers, electric power tools, musical instruments and amplifiers, pool motors, car and burglar alarms. It sets hours during which appliances and machinery can be used and maximum noise levels. Your local council can deal with a wide range of problems, such as barking dogs or other continuing noises. One-off noises, such as a noisy neighbourhood party, are best dealt with by the police. If there is a continuing problem, it is best to have a talk with your neighbour. If that fails, then consult your council to see what they can do. If the problem is beyond the powers of the council, then consult your solicitor to see what legal action can be taken to deal with the problem. In many cases the Local Court has the power to make a “noise abatement order”. Breach of this by the noisy neighbour can lead to fines and other more serious penalties.

If there is a “one-off” problem, then the police have the power to issue a similar notice. The police can issue on-the-spot fines if, after telling the offender to stop or mitigate the noise, it starts again within 6 hours. If we at Matthews Williams can assist you on this or any other legal matter, feel free to phone me or one of our solicitors or call into our office for an appointment.

For further information contact us.