Our office will be closed from 4pm on 23 December 2021 and will re-open on Monday, 17 January 2022.
We wish our clients, referrers, friends and family a very merry Christmas and a happy and prosperous New Year ahead in 2022.
There are limitation periods that apply to various legal cause of action.
The effect of a limitation period in relation to a legal cause of action is that claims become time-barred, and therefore unable to proceed, where the relevant period of time has elapsed without a claim being brought through the relevant Court or Tribunal.
There is no “Statute of Limitations” in New South Wales as such but there is the Limitations Act 1969 (NSW) which has a default limitation period regime where there is no specific timeframe set out in the relevant Act (such as the Succession Act 2006 (NSW), Home Building Act 1989 (NSW), Defamation Act 2005 (NSW), Fair Trading Act 1987 (NSW), Fair Work Act 2009 (Cth), Criminal Procedure Act 1986 (NSW) etc).
The Limitation Act (or the relevant specific Act) describe the types of legal actions and the limitation periods that apply to them such as the following civil claims:
| Cause of action | Limitation period |
| Contractual claims | 6 years from the date on which the cause of action accrued |
| Negligence | 6 years from the date on which the cause of action accrued |
| Family provision | 12 months from date of death |
| Cause of action founded on a deed | 12 years from the date on which the cause of action first accrues |
| Enforcing a judgment | 12 years from the date on which the judgment first becomes enforceable |
| Defamation | 1 year from date of publication |
| Unfair dismissal | 21 days from the date of dismissal of employee |
NOTE – this is a general guide only – you should get specific advice as to the limitation periods that apply to your specific circumstances
Different limitation periods apply to causes of action in different jurisdictions, such as the Commonwealth or those of each State and Territory. Limitation periods can also apply to some criminal matters but serious crimes generally do not have such limitation periods.
In some very limited circumstances, the relevant limitation period may be able to be extended.
FURTHER INFORMATION
For further information on litigation and dispute resolution, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
in Debt Recovery / Dispute Resolution / Employment / General / Litigation / Risk management
by McKillop Legal
01 Dec 2021
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From 01 November 2021, all directors of Australian companies must obtain a Director Identification Number (DIN). This includes foreign directors of Australian companies or other Australian registered bodies who do not reside in Australia.
Directors must register for their DIN personally. You cannot ask any other person to register on your behalf, including your accountant or tax agent. It is free to apply.
The Australian Business Registry Services (ABRS) will maintain the DIN register.
A DIN is a 15 digit code unique to you. It will start with 036 (which is the 3-digit country code for Australia under International Standard ISO 3166) and have a further 11 digits plus one further ‘check’ digit for error detection.
Once you have a DIN, you have it for life, even if you are no longer a director, change your name or move.
ASIC will soon require directors to identify themselves by their DIN when registering a company or being added as a director.
DINs cannot be yet searched by the public, but they may become searchable in the future.
Why have DINs?
The key objectives of the DIN regime are to promote good corporate conduct by:
- enabling tracking of directors and their relationships across companies
- ensuring the corporate history of directors is easily accessible to regulators and external administrators
- verifying the identity of directors to help reduce fraud, and
- limiting opportunities for illegal activities like “phoenixing”
When do you need to get a DIN?
The timing of the need to register yourself for a DIN depends on when you became or intend to become a director:
| Date you became a director (under Corporations Act) | Deadline for obtaining a DIN |
| Before 01 November 2021 | By 30 November 2022 |
| Between 01 November 2021 and 04 April 2022 | Within 28 days of appointment |
| On or after 5 April 2022 | Prior to your appointment |
ASIC is responsible for enforcing DIN offences set out in the Corporations Act 2001 (Cth). It is a criminal offence if you do not apply on time, to apply for multiple DINs or misrepresent a DIN.
Who doesn’t need a DIN?
Registration for a DIN is not needed for:
- a company secretary that is not also a director
- a person acting as an external administrator of a company
- a person running their business as a sole trader or partnership (as they don’t have a company structure)
- an officer of an unincorporated association, cooperative or incorporated association established under State or Territory legislation, unless the organisation also has an Australian Registered Business Number or ARBN.
How do you get a DIN?
To register for a DIN, you will need to gather the necessary details to verify yourself (Tax File Number, passport, drivers license, Medicare card, PAYG payment summary, bank details, superannuation statement etc), register a “myGovID” account (note that this is different to a “myGov” account), and then apply for the DIN on the ABRS website.
Once you get a DIN, you should provide it to the company or companies of which you are currently a director and those you intend to become a director of (to the company secretary, another director or authorised agent of the company)
FURTHER INFORMATION
Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to Corporations Act, directors duties or corporate governance issues or any business or commercial law matter, contact us on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
in Business / Commercial Law / General / Insolvency & Bankruptcy / Risk management
by McKillop Legal
01 Nov 2021
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Internet banking is an easy way to electronically transfer money from one account to another, but it’s important to get the BSB and account number right, because banking systems only use the account number when processing the payment. The account name is not used to transfer the payment.
It is important to check (and double check) the account number when entering it in your internet banking system.
If you do enter the wrong account or BSB number the payment can be made to the wrong account (unintended recipient). This is known as a “mistaken internet payment”.
Under the New Payments Platform, money will only be deposited if it’s sent to an account with matching BSB and account numbers. If they don’t match, the money will bounce back to your account, but it could potentially go to a valid account.
If you have made a mistaken internet payment, you need to contact your bank or credit union immediately. The chance of recovering the money decreases the more time goes by.
Your bank or credit union will then contact the unintended recipient’s bank to try to get the money back. If the money is still in the other person’s bank account and it’s a genuine mistake (because the account name and number do not match), then the process for recovering the money depends on how quickly you have reported the mistake to your bank.
Under the ePayments Code administered by ASIC, there is a process that will help. If you report the mistake:
- Within 10 business days: and sufficient funds are available, the funds will be returned to you.
- Between 10 business days and 7 months: and sufficient funds are available, the recipient’s bank will freeze the funds. The recipient will then have 10 business days to show they are entitled to the funds. If they do not, the funds will be returned to you.
- After 7 months: the funds will only be returned if the other person agrees.
If the money is not in the other person’s account when the receiving bank is notified, then the receiving bank must make a reasonable attempt to get the money back. For example, by negotiating with the unintended recipient to repay the funds.
If your bank or credit union does not help you to fix the mistaken internet payment, you can lodge a dispute with the Australian Financial Complaints Authority (formerly the Financial Ombudsman Service Australia.
BPAY payments are not covered by the ePayments Code as BPAY uses a different process to resolve mistaken payments.
If you, or someone you authorised, did not make the transfer, then it may be an unauthorised transaction, as opposed to a mistaken internet payment. While unauthorised transactions are also dealt with under the ePayments Code, the process for resolving this issue is different. If you believe an unauthorised transaction has taken place, notify your bank immediately.
FURTHER INFORMATION
For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
in Asset Protection / Business / Commercial Law / Debt Recovery / Dispute Resolution / General / Online Issues / Risk management
by McKillop Legal
01 Oct 2021
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The Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) has strict rules as to who must act as a trustee of a self-managed superannuation fund (SMSF), but basically this means:
- if you are individual trustees of a SMSF, all members must be trustees of the SMSF
- If you have a corporate trustee of a SMSF, then all members must be directors of it.
The SIS Act also provides that those trusteeship rules will continue to be satisfied if a member’s attorney (under an enduring power of attorney) is appointed as trustee/director in place of the member. This can also assist if you will be overseas and unable to tend to the management of the SMSF for a prolonged period.
Where there is no enduring power of attorney, the member may need to be rolled out of the SMSF or an administrator may need to be appointed by the Court. One consequence of breaking these trusteeship rules can be the ATO removing the SMSF’s complying status and triggering tax at the top marginal tax rate.
There are several important reasons as to why your SMSF should have a corporate trustee. So how can having a company as trustee be of benefit?
Individual trustee dies or becomes incapacitated
When a member who is a SMSF trustee becomes incapacitated or dies, the trustee/s will need to change.
On the death or incapacity of a member, typically the deceased/incapacitated trustee will be removed and replaced with their ‘legal personal representative’ (LPR). An example of an LPR is an attorney appointed an enduring power of attorney or executor under a Will.
Another complication is that when a member/individual trustee dies and their death benefit commences to be paid from the SMSF, the trustee/s will need to change again (as the LPR cannot continue to act in place of the deceased member).
Every change of trustee will need to be reflected on all assets of the SMSF (including updating the title to any real property), causing delay and expense to the SMSF and family, at a time when the family would rather be focused on assisting the debilitated member of grieving their death.
Death or incapacity of a director of a corporate trustee
Where there is only one member remaining in the SMSF (due to death or rollout of a member), the remaining member will not have to find a second person to act as co-director of the trustee (single member SMSFs are required to have 2 trustees if the trustees are individuals). Title to the SMSF assets does not need to be changed, although ASIC’s register will.
Reduced ASIC fees
The expense of registering and maintaining a company is the most common deterrent to SMSFs using a corporate trustee however, unlike being a trustee of a family, discretionary or unit trust, where a company only acts as trustee of a SMSF, it is a ‘special purpose company’ (meaning it will receive the benefit of reduced ASIC annual return fees.
Other benefits
Having a company act as trustee can also offer some litigation exposure protection and may assist with borrowing under a Limited Recourse Borrowing Arrangement as some lenders require it
Overall, having a corporate trustee can be a more efficient, cost-effective and administratively simpler option for your SMSF and can be an integral part of your overall estate plan.
FURTHER INFORMATION
For further information on estate planning, corporate, superannuation or succession issues, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
in Business / Commercial Law / Estate Planning / General / Litigation / Probate / Risk management / Superannuation
by McKillop Legal
01 Sep 2021
0 comments
From 11 October 2021, changes to the land titles system in NSW will apply as part of the transition away from paper-based processes.
The Real Property Amendment (Certificates of Title) Act 2021 makes 2 significant changes with effect from that date:
- the cancellation of Certificates of Title (CT) for real property and the control of the right to deal (CoRD) framework – the CoRD being the electronic equivalent of a CT; and
- all land dealings must be lodged electronically – referred to as ‘100% eConveyancing’.
Accordingly, on 11 October 2021, all existing CTs will be cancelled and new CTs will no longer be issued. From then on, existing CTs cannot be required to be produced to have a dealing or plan lodged for registration at NSW Land Registry Services (NSWLRS, formerly NSW Land & Property Information and the Land Titles Office).
What does this mean for you?
There are 3 main changes from the current practice for landowners:
- those who pay off their mortgage will not receive a CT as was traditionally the case.
- a purchaser of property without the need for a mortgage will not receive a CT.
- when a plan of subdivision is registered, and new parcels of land created, CTs (or CoRDs) will no longer be issued for those parcels.
In all instances, an “Information Notice” will issue, which will confirm the dealings registered and date of registration.
Abolition of Certificates of Title
Landowners of unencumbered land (that is with no mortgage) who have a CT don’t have to do anything either before or after 11 October 2021. After this date however, the CT will no longer be a legal document (and thus will have no legal effect), although you may like to keep it for sentimental reasons (although the current CTs aren’t anywhere near as impressive looking as the old system ones).
Note that just because you have paid of your mortgage, it may still be registered no title – it must be formally discharged. If you want the CT, you ought to act quickly to have it discharged and the new CT issued prior to 11 October 2021 as you will not get one after that date.
Those who own unencumbered land, but have someone else holding or storing their CT, may wish to request to have it back. From 11 October 2021 there will no longer be a remedy under the Real Property Act 1900 to get a CT back from others, given it has no legal effect.
Lenders holding CTs
If you hold a CT in as informal security for an unregistered mortgage or charge over a property following an advance of money or provision of goods or services, you should take steps to protect your interests before 11 October 2021 as when CTs are cancelled, this method of securing payment will no longer be available or effective.
From 11 October 2021 lawyers and licensed conveyancers no longer need to ask for a copy of their CT when acting on a sale or when lodging a dealing for registration.
100% eConveyancing
The Registrar General has declared under the NSW Conveyancing Rules that all electronic dealings listed in the Schedule of eDealings are mandated to be lodged electronically.
All land dealings to be lodged with NSWLRS can only be done electronically by a subscriber (e.g. a lawyer, licensed conveyancer or bank) to an Electronic Lodgment Network.
FURTHER INFORMATION
For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
From Monday, 12 July, all businesses will need to display their Service NSW QR code and take reasonable steps to ensure people entering their premises check-in using that QR code or digital sign-in sheet.
This applies to ALL workplaces of any nature and includes takeaway only venues.
For more information or to register your business as COVIDSafe and to get your QR Code, visit the NSW Government COVID-19 page for business and employment.
Under the Succession Act 2006 (NSW), eligible persons may apply to the Supreme Court of New South Wales for a family provision order in relation to the estate or notional* estate of a deceased person to provide “for their maintenance, education or advancement in life”.
The first hurdle to overcome is being an “eligible person” and the second is whether the provision (if any) made for the applicant in the deceased’s Will** is adequate, and if not, what “family provision order” could be made to make it adequate. Unfortunately, this process is not as simple as we have explained it.
Limitation period
Claims for provision must be made within 12 months of the date of death of the deceased person (although in limited circumstanced, this time limit can be extended).
Process
After proceedings are commenced and the parties have put on the majority of their evidence, applications for family provision orders are generally referred to either a Court annexed mediation or to private mediation but if no agreement can be reached, the matter will be set down for hearing.
Eligibility
Those who are “eligible” to make a claim for a family provision order out of a deceased person’s estate include:
- a spouse of the deceased at the time of the deceased’s death;
- a former spouse of the deceased;
- a person in a de facto relationship with the deceased at the time of death
- children (including adopted children) of the deceased;
- someone with whom the deceased was in a close personal relationship*** with at the time of their death;
- those who have, at any time, been wholly or partly dependent upon the deceased and who either:
- are a grandchild of the deceased; or
- were, at any time, member of a household of which the deceased a member.
How do you know if you are to receive an inheritance?
Click here to read about how to get a copy of a deceased person’s will.
Adequacy
The Court won’t simply rewrite a deceased person’s Will based on claims of justice or unfairness such as unequally dividing an estate between siblings. The Court has a wide discretion in determining these matters and the nature of any order for provision that may be made.
The Court first considers if the gift (if any) was adequate and if not, what provision may be adequate.
The Court exercises is discretion to make an order and if so, on what terms, after considering the following factors:
- any family or other relationship between the applicant and the deceased, including the nature and duration of the relationship,
- the nature and extent of any obligations or responsibilities owed by the deceased to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased’s estate,
- the nature and extent of the deceased’s estate (including any property that is, or could be, designated as notional estate* of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
- the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate (that is the competing needs/claims of others),
- if the applicant is cohabiting with another person–the financial circumstances of the other person,
- any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
- the age of the applicant when the application is being considered,
- any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased or the deceased’s family, whether made before or after the deceased’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
- any provision made for the applicant by the deceased, either during the deceased’s life or made from the deceased’s estate,
- any evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased,
- whether the applicant was being maintained, either wholly or partly, by the deceased before the deceased’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased did so,
- whether any other person is liable to support the applicant,
- the character and conduct of the applicant before and after the date of the deceased’s death,
- the conduct of any other person before and after the date of the deceased’s death,
- any relevant Aboriginal or Torres Strait Islander customary law,
- any other matter the Court considers relevant, including matters in existence at the time of the deceased’s death or at the time the application is being considered.
*Where assets that were previously assets of the deceased prior to death (such as assets gifted or transferred by the deceased to another person or entity prior to death to attempt to avoid an application for an order for provision, superannuation, property owned as joint tenants between the deceased and another person), be considered as an asset of the estate for the purposes of an application for a family provision order.
**Note that even in intestacy (where there is no Will), an application can be made for a family provision order.
*** A “close personal relationship” is a relationship other than a marriage or a de facto relationship between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care but not for reward or on behalf of another person or organization.
FURTHER INFORMATION
For further information in relation to Wills, Probate, Intestacy, Estate Planning or even International Wills, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
in Dispute Resolution / Estate Planning / General / Litigation / Probate / Property
by McKillop Legal
01 Jul 2021
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In previous articles we explained the consumer guarantees under the Australian Consumer Law (ACL) in relation to goods and how the ACL applies to services, such as being of acceptable quality, fitness for purpose, matching description etc however, from 01 July 2021, the monetary threshold increases from $40,000 to $100,000 (an increase of 150%).
Presently, the ACL covers ‘consumers’ as being any person or business who acquires goods or services that
- cost $40,000 or less; or
- costing more than $40,000 but being ordinarily acquired for domestic, household or personal use or consumption; or
- if the goods are a vehicle or trailer.
From 01 July 2021, the Treasury Laws Amendment (Acquisition as Consumer—Financial Thresholds) Regulations 2020 expands the ambit of these non-excludable consumer rights to any goods or services acquired for an amount of up to $100,000, regardless of their intended use.
Businesses ought to ensure that their terms and conditions, packaging and advertising covers this expanded definition and ensure that the consumer guarantees are provided for the greater value items and that the mandatory wording is included in relation to the consumer guarantees.
Additionally, staff ought to be made aware of the changes and their effect, arrangements made to identify these expanded ‘consumer’ sales and budgets ought to be adjusted to allow for more claims for refund, replacement or compensation.
FURTHER INFORMATION
For further information in contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
in Business / Commercial Law / Dispute Resolution / General / Litigation / Risk management
by McKillop Legal
30 Jun 2021
0 comments
McKillop Legal is a COVIDsafe venue and remains open for business during the lockdown.
- You must check in using our QR registration code
- Masks must be worn in our premises
- You must use hand-sanitiser on entry
- If you are unwell, have been to a hotspot or are in isolation, please don’t attend
- We can meet via Zoom, Teams, Skype or telephone
