Welcome to

• "changes to the law will discourage unnecessary
  litigation "

Lawyers no longer guns for hire

From 1 January 2011 some changes to the law will discourage unnecessary litigation.

The disputing parties must now try to resolve their differences on their own and with their lawyer before they can access the Court system.

The party initiating the proceeding must establish the facts are valid and genuine efforts to resolve the dispute were made. The lawyer initiating the proceeding must also certify the case is on balance an action with merit and the respondent must establish their defence has merit.

The facts stated in the writ or document initiating the proceeding must be limited to the relevant issues in dispute.

The court encourages resolution through direct negotiations, mediation and as a last report formal adjudication by a Judge. Cost previously limited to party/party costs after commencement of the proceeding may be on a solicitor/client basis from the moment a lawyer was engaged to resolve the dispute.

Some topics in handling dispute and getting the best value from your lawyer are contained in the April 2011 NODCO Adviser.

Some Property Buyers Lacking Protection?

Buying real estate is a significant investment and often combined with debt is a high risk for loss to a casual buyer. There is a growing trend in borrowers not exercising caution to save costs and taking unnecessary risks -

• Property inspection reports not being obtained before either purchase or settlement to identify unauthorised or defective buildings;
• Insurance cover not being obtained immediately after the contract is signed
• Caveat lodged to record the interest of the new owner not being registered

Buyers are exposing themselves to significant loss and legal expense for the nominal savings gained from unpaid fees for these timely services. The NODCO Adviser Autumn 2011 edition explains the merits of Caveats.

• "Terms and conditions in Consumer Contracts may be struck out"

Competition and Consumer Protection Act 2010

The Competition and Consumer Protections Act 2010 commenced on 1 January 2011 and replaces and extends the Trade Practices Act and Fair Trading Act. The new Act covers product safety, unfair contract terms, consumer guarantees, unfair practices and sales practices.

Terms and conditions in Consumer Contracts may be struck out if they are deemed unfair by the Court. A summary of the changes are summarised in the April Adviser Newsletter to clients.

Business trading terms and contracts should be reviewed for compliance with the law. For further assistance contact our Business Law department.

• "All persons who provide credit or assist borrowers obtain credit are required to hold a credit licence issued by ASIC"

New World Credit Order

On 1 January 2011 the law relating to credit to individuals for personal or investment purposes where a residential property is being used as security was changed.

The Australian Securities and Investments Commission now regulates credit. All persons who provide credit or assist borrowers to obtain credit are required to hold a credit licence issued by ASIC.

The law requires certain qualifications, skills and compliance with standards. All licence holders must file an annual report with ASIC, be a member of an external credit provider service, hold insurance for any liability to the borrowers to whom they provide credit or credit assistance, be subject to audit and have minimum professional development requirements. The law requires credit providers to act responsibly and to only lend when a loan is not unsuitable for the borrower. Credit Assessments must be undertaken and due diligence as to credit worthiness is compulsory. All credit providers are required to have hardship facilities for borrowers.

The Government intends to extend the law to small businesses in Australia where the business relies on a residential property as security for a loan. The commencement date is expected to start not before July 2011.

The legislation is intended to protect borrowers from entering into unsuitable loans which would worsen their financial position. The legislation ultimately will discourage bad borrowing and increase savings in the community.

• "disability trusts have a government concession that is exempt from the usual means test"

Trusts

For many years trusts have been a useful structure to hold and preserve assets for families between generations. Tax and welfare legislation has been sequentially amended to limit the use of trusts for any tax or welfare advantage. Trusts are used extensively in Wills to take advantage of asset positions and strategies that existed at the time the Will was made. Increasingly it is beneficial to create the structure before death and incorporate the trust into the Will. For example a special disability trust can be created outside a Will for a disabled child while a trust may be created by a parent for their grandchildren with the children in control.

Trusts like tax should be reviewed annually to verify the trust remains effective. Often changes can be made by the settlor during their lifetime but not on their death. No trust is the same. Seek early and regular advise on any trust being used to handle your affairs. Our business law division can assist you with any trust issue. Only lawyers can give advise on trusts.

• "Clients can access parts of their files via internet access"

Electronic Office

Since 2009 Nicholas O'Donohue & Co has been a paperless office with electronic files. During 2010 Nicholas O'Donohue & Co spent $265,000 upgrading its computer hardware. Clients can access parts of their files via internet access while current or request an electronic copy at the conclusion of their case. If you already access your safe custody packet you will have access to your current file. Our Client Services division can arrange access to your file. In late 2011 clients will be able to download their trust account, expenses and invoiced bills also via the internet.

• "Clients can view the contents from anywhere with internet access "

Safe custody packets

Clients of Nicholas O'Donohue & Co have safe custody packets with secure electronic access. The contents of each deed packet is scanned and registered on our computer system to record access and movement. Clients can view the contents from anywhere with internet access. Our auditors verify this security is maintained. Documents cannot be released without the signed authority of the client. Our Client Services team can arrange a new safe custody packet, discuss contents, provide internet access, or refer you to a lawyer in the practice to assist you with a new transaction.

• "Winning Fee® agreements allow the client to retain the firms service at no cost in some litigious areas"

Pro bono

Nicholas O'Donohue & Co provides pro bono legal assistance to individual clients, charities and community groups. The legal assistance is provided by our lawyers and barristers at the same level as a full fee paying client. Our pro bona service requires the case to have merit and one that our resources can provide adequate assistance. This service is not associated with or supported by any pro bona referral scheme or legal aid service provider.

• Links    
  • Department of Justice
  • Parliamentary Library
  • FIDO
  • ASIC
  • Child Support
  • Consumer Affairs Victoria
  • Community Services Directory
  • Legal Services Commissioner

Disclaimer | Site Map | Privacy Policy | Contact Us | Nicholas O’Donohue & Co Copyright © 2011