magazine

Lawyers

2016

An Offi

cial Atkinson Vinden Lawyers Publication

Contents

2 Welcome to affidavit from Rod and Sheena4 This Ain’t Tele – The AV Vision 6 Hydro Produce – Client profile8 Who has Access to your Nest Egg? Don’t leave the door open on your estate and assets10 Our Property Team – Ready to help you12 Optimising your Human Resources – Effective HR Management pays dividends 13 PRaMM Fundraiser 201614 The Sly and the Slippery – Stories from our Litigation Team16 Probate – Following the Will of your loved one17 Buying a Business? – Asking the right questions can make all the difference18 Insights 2016 – an Atkinson Vinden training and networking event 20 You & Your Neighbours – Maximising the sale price of your property21 Training for Business Leaders – AV Special Offer22 Retirement Villages and Care Facilities – Case Study: Buying & Selling Businesses23 Children and Separation – Family Law24 Getting Best Value from your Lawyers25 Unfair Contracts Open to Challenge – Tightening up your agreements26 Cheap & Dirty – Short Term Justice for Builders 28 Unhappy Beneficiaries left out of a will29 Launching AV’s Business Advisory Team30 Country Sports, Leg Inspections, and Eccentric Vignerons Reflections on a lifetime in legal practice32 ICT contracts require specialist skills34 Life Sciences & Health Care – A booming industry on Sydney’s North Shore36 Make it Happen – 10 members of the AV team tell us what they do38 AV Services Atkinson Vinden Lawyers has all of your bases covered

Dear friends and supporters,

It is very powerful when businesses talk to each other. Regardless of what industry group we might each represent, when we openly share with each other our differing experiences and concerns, it is inevitable that we will all come away with fresh insights.

Franklin D Roosevelt once observed that, “Competition has been shown to be useful up to a certain point and no further, but cooperation, which is the thing we must strive for today, begins where competition leaves off.” Rather than seeing all other business leaders as potential rivals, a mature approach recognizes the opportunity for mutual improvement through the sharing of accumulated wisdom and experience.

We are lucky to have around us a community of businesses and organisations, all striving to grow and improve in a challenging marketplace. A priority for our firm in 2016 is to work more closely with our clients for the mutual sharing of business knowledge. We are also committed to providing opportunities for our extensive array of contacts to get to know each other better, to facilitate business development opportunities for all.

It would be great to see you at some of the various networking events we have planned for this year, including Business Networking Functions, our flagship business networking event - Insights 2016 on 10 May (page 18), our PRaMM fundraiser event on 8 September (page 13), or one of our numerous Boardroom Business Lunches held throughout the year.

We look forward to collaborating with you this year.

affidavit is art directed and designed byAtkinson Vinden Lawyers brand management partner PEOW PEOW.For all of your design needs, large and small please contact peowpeow.com

This publication is intended to provide readers with general information. Please obtain professional advice before undertaking any course of action. Articles and imagery not to be used without the express permission of the directors of Atkinson Vinden P/L© Copyright Atkinson Vinden, 2016.

Our best regards,

Rod and Sheena

Sheena JoshiSenior Partner

Rod BerryManaging Partner

Modern television has a fascination with lawyers. And with their shenanigans. From the likes of Rake and The Good Wife through to Boston Legal and Suits, we might get the impression that the practice of law is necessarily accompanied by profound dysfunction and the bitter rivalries of lawyers acting on instruction from neurotic clients.

What’s life really like working in an Australian law firm?

Most lawyers and paralegals have experienced toxic workplaces at some time in their legal career. I have heard (and still occasionally hear) appalling stories of staff mistreatment and other reprehensible conduct in other firms. I also occasionally hear horror stories from clients about experiences which they have had elsewhere, from allegations of gross overcharging and neglect right through to woeful incompetence.

One of my earliest memories in the law was being sternly told by the managing partner of a CBD firm that I would have to choose between family life and a successful career, because it was impossible to have both. I observed him dishing out personal abuse on a daily basis to most of the staff, whilst remaining sweet as pie with his loyal clients who were none the wiser. There seemed something very inauthentic and self-destructive about his behaviour. It did not surprise me to hear some years later that his legal partnership had broken up in very acrimonious circumstances.

Lawyers are taught to focus on risk. Their headspace is often negative, because they are concerned to protect their clients from what might go wrong. Lawyers excel at winning arguments, and producing menacing letters. Contention becomes an art form. This culture may explain the link between legal practice and depression. According to a study of depression in the legal industry in Australia published in the Sydney Law Review in 2011, almost one in three of the 924 solicitors interviewed suffered high levels or very high levels of emotional distress at work, more than three times the average working population. The same study noted the strong link between emotional distress and dependence upon drugs and alcohol.

Negativity and dysfunction in the practice of law ultimately does a disservice to clients. It stifles creative thought, interferes with listening properly to what a client actually wants, and can take a matter in a direction that is ultimately a waste of time and resources for the client.

In litigation, for example, it is almost always in all parties’ interests to explore compromise options in favour of going to a hearing before a judge. This is because of the major costs of running a hearing, the unpredictability of what can occur at trial, and the potential for an adverse costs order if the case is lost. A lawyer with an unduly negative perspective may be so hell-bent on winning at trial that the commerciality of the situation for his client is entirely forgotten. By contrast, a solutions-oriented lawyer will always explore the potential for a resolution of their client’s dispute as a top priority before

This Ain’t TeleThe AV Vision

heading to court, because this may be in the best long-term interests of that client.

Workplace theorist Daniel Pink argues that there are three things we all need in order to be the most effective at work: mastery, autonomy, and purpose. Mastery recognises that when we become very good at something, it is intrinsically satisfying to apply that mastery. Autonomy honours the individuality of every person, and is based on the notion that when we show trust in a person and allow some flexibility, rather than seeking to control them, they will usually respond positively and produce their best work. Purpose focuses on the underlying “why” of our job. If we are genuinely helping others and solving their problems, this provides a more lasting sense of satisfaction and motivation than simply collecting the fortnightly pay packet.

We are actively working to build these notions of mastery, autonomy and purpose into the culture of Atkinson Vinden by prioritising the five key values of authenticity, excellence, security, social engagement and balance. These values guide our decision-making and priority-setting as a business.

Authenticity describes our commitment to genuine relationships. We will be honest with clients about their matter – giving the right advice as opposed to the advice they may want to hear. We will only act for clients who are genuine in their commitment to integrity so far as the law is concerned. We are truthful in all of our dealings with the court. When we contact opposing lawyers on behalf of our clients, we prefer to focus on collaborative solutions rather than threats and intimidation as we see, time and time again, that constructive dialogue produces the best results. Internally, we expect all staff to relate openly, honestly, and respectfully to each other. A culture of authenticity encourages autonomy and purpose.

Excellence is the bar we set for everything. Our staff are expected to strive to be fantastic in everything they do, whether it is in the practice of the law, or how they answer the phone, or the enthusiasm with which they restack the paper in a photocopier. By being excellent, we take pride in the quality of our work, and we produce the best outcome for our clients. As we have seen, mastery becomes its own motivator to become better and better.

Security describes our desire to ensure the firm remains financially strong in the future. We are committed to achieving strategic growth by focussing on areas where we have specialist skills and the interest and passion to be market leaders. We choose to act for clients who recognise the value of our work, and with whom we can build long-term strategic alliances for the financial benefit of all. These choices provide us a long-term purpose from which we all benefit.

Social engagement captures the desire to live with purpose. Lawyers have particular skills which can make a huge difference in the world. Each year we are committed to dedicating our resources without fee to five worthy causes in the community. We want to make a difference. The things we commit to reflect the individual concerns of members of staff.

Balance focuses our attention on finding joy through both work and rest. A satisfying professional life is an important part of finding contentment, as is also having enough free time to enjoy friends and family, and to do those interests outside of work which we are passionate about. We choose not to work excessive hours because autonomy and purpose are so important, and it ensures that when you engage us to work with you, we can be at our best for you.

▣ Rod Berryrberry@avlawyers.com.auTelephone+ 61 2 8448 9814

This Ain’t Tele cont.

Client Profile:

From its early beginnings in the 1940’s as lettuce growers in western Sydney, Hydro Produce has steadily grown into what is now a large-scale national operation. Sourcing the best and freshest produce from around Australia, Hydro Produce services a large and extensive customer base, while still retaining small business qualities. It has been AV’s great pleasure to work with the directors of Hydro Produce to see its massive expansion in recent years. Senior Partner Sheena Joshi tells us more.

There are some clients that you form a very special bond with. For me, one of these is the Cordina family, the owners of Hydro Produce.

Over the years Atkinson Vinden has partnered with this wonderful family company, providing legal advice and representation with their various commercial, property, HR and litigation requirements. It has been an exciting journey, and we have forged a wonderful understanding.

The team at Hydro Produce is very proud of their achievements. “Everybody deserves quality fresh food,” Director John Cordina says. John, who is 33, took the lead role in steering Hydro Produce from his father Charlie two years ago, after working in the business from his early teen years.

What is the secret to the success of Hydro Produce? John reports, “Keeping it simple. Doing things right and doing them well may seem easy but it is often this simple rule that is forgotten in other businesses. How can we improve ourselves, how can we serve our customers better and how can we improve the overall business? These are the daily questions I ask my team and myself.”

“Rapid growth has never been a goal. Whilst we have steadily expanded over the last five

years. We are a business that is focused on doing what we do now, but just better. I am a believer in that there is always a way to keep improving and that’s where I want our growth to come from for now,” John said.

Hydro Produce’s key farming operations include 550 acres in Bundaberg Queensland, and 57 acres in Peats Ridge in New South Wales. They also source fresh produce from an array of farmers throughout Australia. Produce is shipped into two metro based customer fulfillment points in Sydney NSW. Facilities include both ambient and conditioned storage rooms and state of the art pre-packing rooms specifically built to pack their core lines.

So what specific vegetables are their focus? Hydro Produce core lines include sweet potato, ginger, herbs, hydroponic lettuce, kale, Asian vegetables and baby vegetable lines.

John Cordina believes that Australians are lucky to have access to the best fresh produce in world. “When it comes to fresh fruit and vegetables no other country in my opinion does it better than Australian growers,” said John.

When I asked John what he liked about working with Atkinson Vinden, he said,

John (left) and Charlie (right) Cordina

“I like the confidence they give me in making business decisions. I also appreciate the effort the team has taken in getting to know our business and the complex nature of the fresh produce space”

Hydro Produce has recently refreshed their brand and are launching a new website in 2016 complete with a large library of inspirational fresh recipes, at www.hydroproduce.com.au

You can find Hydro Produce products through major supermarkets and independent retailers nationally.

What makes life great is the anticipation of what lies ahead

The right advice from the right people,so you can face the future with confidence. www.avlawyers.com.au  or phone 02 9411 4466

Lawyers▣ Sheena Joshisjoshi@avlawyers.com.auTelephone+ 61 2 8448 9852

Client Profile cont.

Who has Access to your Nest Egg?Don’t leave the door open on your estate and assets

Senior Associate Anne Goodrick spends much of her time assisting our clients with their estate planning and trust and superannuation structuring. In this article, Anne identifies some of the live issues to be aware of when approaching the important issue of protecting your hard-earned assets.

Much advertising in the financial services sector focuses on protecting your nest egg – that golden asset of value that you have accumulated and hope to continue accumulating for yourself and your family. The usual aim is to “keep it in the family” – that is away from creditors or “blow-ins”.

Just what is comprised in your nest egg may determine how you ensure your aims are achieved. It could be personally held property (shares, land and money), property in a trust in which you are (perhaps one of or the main) beneficiary, property/money/benefits held in superannuation, or entitlements flowing from insurance, retirement benefits or court actions.

A critical question to ask about each of these assets is whether they are protected from former spouses, former or current spouses of your children, creditors (both yours and your children’s), or the trustee in bankruptcy for you or your family members. This question is not only relevant in current circumstances, but also just as importantly should circumstances change in the future – especially in the context of relationship breakdown or financial hardship.

Whilst you are alive, removal of assets from personal ownership (after a certain period of time called a claw-back period) is generally effective to prevent creditors or a trustee in bankruptcy (who is the ultimate end of the line when creditors come calling) from taking them. However this is not always the case - even property held by a family member or trust may be at risk if the “protected” person controls it or made the financial contribution for its acquisition.

Sometimes a structure may be established which is technically sound for asset protection, such as a trust (established in your lifetime), a testamentary trust under Will, company ownership, reduction of share in property, change of ownership structure in property – joint tenancy or tenants in common, or holding assets in superannuation. But even these schemes can fail in operation – usually when the protected person can’t keep out of it and is in effect the controller of the asset. Others may fail because of timing issues – such as changing the method of ownership of real property in a way that would work if the right person dies first which is thwarted by the earlier death of the “wrong” person.

Superannuation is generally protected from creditors and is therefore a great wealth-building structure. However, contributions made to Super with the intent to defeat creditors will be void as against the trustee in bankruptcy of the person making the contributions. A provision in a self-managed superannuation fund trust deed disentitling a member to an interest in their benefit during the period of bankruptcy is also void.

A particular risk with Super is that on death, benefits may be paid to parties to whom the member would not choose, such as second or other spouses, or children who are estranged. That can generally be protected against by an effective binding death benefit nomination, but care is needed in making these in proper valid form.

There is no one way of protecting that nest egg. Your situation is unique, and strategies will need to be tailored to you. We enjoy working collaboratively with accountants and financial planners to achieve the best outcomes for our clients.

▣ Anne Goodrickagoodrick@avlawyers.com.auTelephone+ 61 2 8448 9859

Who has Access to your Nest Egg cont.

Our Property TeamReady to help you

In 2015, our property team handled 1,538 separate property sale or purchase related matters, or an average of 30 every week. This figure does not include the hundreds of commercial leases also handled by AV. Our clients range from large property developers and builders, investment companies, property speculators, retirement village and aged care operators, right through to individuals buying or selling their family home. Managing Partner Rod Berry takes us behind the scenes and explains how this enormous volume of work is done so professionally without anyone going completely bonkers!

With my background squarely in litigation and employment law, the day-to-day workings of our property lawyers and paralegals has long been a source of mystery to me. During 2015 I decided to spend some time with our property and retirement village teams, finding out just how they do it – the processes they follow, and the many hurdles they must jump over to bring each property transaction to a successful conclusion. I came away deeply impressed with their level of commitment and professionalism.

If you were to visit our property team on a typical morning, you would see most of our staff on the phone – speaking with clients, calling the other party’s representative, making enquiries with a bank, or liaising with our filing agent regarding an upcoming settlement. There is much organising

to be done. Issues arise unexpectedly, clients have urgent questions needing answering, and there is a seemingly endless list of documents to prepare and to ensure the proper execution of.

Every file is carefully organised, using precedent documents and a checklist that is strictly adhered to. Whiteboards at each work station list the dates of all upcoming settlements. When staff are not on the phone, they are preparing forms, copying or scanning annexures, and helping each other with particularly urgent matters. For large property developments, there is the constant updating of spreadsheets to keep clients informed of the status of dozens of individual transactions. And there is constant liaison with our accounts team, organising cheques and EFTs, in careful compliance with our trust account keeping obligations.

There is a very strong sense of client loyalty. This is never more apparent than when our staff have the wonderful task of calling a client to advise them that their sale or purchase has settled. “Congratulations Mr Brown, you are the legal owner of your new home!” No matter how many of these our staff do, the thrill is still the same – a palpable sense that we are making a real difference in the lives of our clients.

Sue Falkner heads up the Property Team, and provides overall direction to our property operations. Her particular focus is working with larger clients who already have a deep understanding of the legal processes, but who still rely on Sue’s many years of accumulated experience when

confronted with novel and difficult situations. Sue works closely with Anne Goodrick who, as an Accredited Property Law Specialist, brings the highest level of property law knowledge possible. Together Sue and Anne brainstorm the most difficult and confounding situations, and are yet to come across a situation they could not solve!

Senior Partner Sheena Joshi and Senior Consultant Guy Vinden direct a lot of the work for property developers and retirement village and aged care operators, and enjoy the many long-standing client relationships the firm has in this area, handling calls on a daily basis from clients with a never-ending range of questions and issues to solve.

Sheena, Guy, Sue and Anne, all rely upon the skills and dedication of two licenced conveyancers – Suzanne Sadler and Tracey Cameron – as well as a team of highly experienced property paralegals. Regular meetings together which include video training and precedent development ensure consistent and high quality advice to our clients.

▣ Rod Berryrberry@avlawyers.com.auTelephone+ 61 2 8448 9814

From left: Karen Phillis, Jill Constantine, Anne Goodrick, Sue Falkner, Loradana Celestino, Gail Clarke, Gigi Wong, Michael Smith, Tracey Cameron, Janelle Boutros, Suzanne Sadler.

Our Property Team

Optimising your Human Resources

Effective HR Management pays dividends

From her significant experience in dealing with HR disputes for companies and individuals, our employment and litigation Associate Caitilin Watson provides important insights into how to get the best from your staff.

Business owners spend countless hours dealing with such issues as budgets, cashflow analysis, market analyses and business development strategies. The truth of the matter, however, is that the health of our business may best be measured by examining the people and culture in our workplace. Employees are usually the largest asset of a business. If we don’t manage our people well, our business will never reach its full potential. As with most problems, prevention is better than the cure. There are simple structures and procedures businesses can implement to reduce employee friction, improve efficiency, decrease claims and risks and increase profitability.

I recommend the following:

1. Encourage good culture in the workplace:

The value of good culture is the best way to address a multitude of employment law issues and encourage employees to excel in their work for the business. Employees who enjoy working together collaborate better and work towards common goals for the business more efficiently than employees with personal gripes against each other. Employees who respect their workplace and feel valued are more likely to raise issues with their boss, negotiate solutions and will be less inclined to lodge claims against the business. You can encourage good culture with open discussions, team

building activities, positive leadership, recognition of good work, listening to feedback, providing an Employee Assistance Program and any occasions which encourage staff to get to know each other personally. What might be holding your workplace back from having the best possible culture?

2. Create a specific selection criteria for hiring and firing:

One of the major challenges is finding suitable staff. It can be a process. Create a written list of the qualities sought in employees. You cannot discriminate against protected categories such as gender or family responsibilities, however you can discriminate in favour of personal qualities that are a good fit for your business, such as willingness to participate in industry events or attitudes to technological change. Use negative experiences as a learning experience with exit interviews. Consider restructuring teams and connecting complimentary workers. Make use of probationary periods. If you instinctively feel a worker is a poor fit for the Company even after an extensive trial period, then trust your experience and consider terminating the relationship. Are you confident that you have the right people working in your business?

3. Document your employment agreements and workplace policies:

As with any major relationship of the business, it is central to document the terms and conditions of the agreement. This should be in writing with both parties signing the final agreement. This assists employees to understand what the business expects of them. It also allows the business to performance-manage employees who do not accomplish the duties of their role and terminate the employee if the relationship does not work out in the long run. Likewise the primary purpose of policies is to clearly inform employees what the business requires of them day to day. The process of developing policies should assist the business to think about how the business functions, streamline processes, the structure of the roles in the business and how the business can improve. Do your staff know what is expected of them?

4. Intervene to prevent small problems becoming major problems:

There is no way to risk proof your workplace, however there are optimal ways to manage issues when they arise. Where the employees concerned are unable to sort out their differences directly, the employer must step in to investigate and conclude the source of tension as a matter of urgency. An investigation must comply with the principles of natural justice. Acting in this way may prevent a relatively minor issue turning into a larger problem. Do you have unresolved sources of conflict in your workplace? What intervention is required to restore a healthy equilibrium?

▣ Caitilin Watsoncwatson@avlawyers.com.auTelephone+ 61 2 8448 9825

From the pain of loss of a full-term baby for one of our own staff three years ago came a determination by the staff members of AV to actively support the work of Perinatal Research and Maternal Medicine (PRaMM). For the third year in a row, in September 2016, AV will be hosting a special cocktail event to raise important funds for PRaMM, and to stand in solidarity with those who have suffered the same terrible tragedy. Find out how you can get involved.

PRaMM researchers are recognised nationally and internationally as leaders in medical research and hold many highly competitive grants. To maintain their vision to ensure the best possible outcome for mothers and their babies, they are dependent on additional funding.

Working under the banner of the Kolling Institute of Medical Research, in association with the Royal North Shore Hospital and the University of Sydney, PRaMM seeks to discover new ways of identifying babies at risk of problems during pregnancy and after birth. They hope to find solutions to miscarriage, premature birth and stillbirth, and identify effective treatments

for pre-eclampsia. Through gathering data on pregnancy outcomes, they hope to better inform clinical practice, and evaluate the best way to deliver maternity care and determine the optimal way to care for newborn babies.

If you would like to support this vital work, join us at The Ivy Sunroom on the evening of the 8th of September 2016. Through buying tickets, and participating in our charity raffles on the night, you will be providing much needed funds for PRaMM. You will have the chance to hear first hand from members of the PRaMM team some of the progress they are making to improve outcomes for mothers and their new babies.

Even if you can’t join us on the night, please consider donating to PRaMM. So far AV has helped raise more than $30,000 for this worthy cause, and we are hoping to raise a substantial amount more in 2016.

For more details, contact Janice Martin on (02) 9411 4466, or email her at jmartin@avlawyers.com.au. Further details will be circulated in the months leading up to the event.

Thanks in anticipation of your support.

PRaMM Fundraiser

20168 Sept.

The Sly and the Slippery Stories from our Litigation Team

Let’s face it, the practice of the law can be a bit dull. However, sometimes things can get a little interesting, as litigation lawyer and Managing Partner Rod Berry explains.

I have spent many days in court, some of which have been stultifyingly boring. I recall one particularly dull insurance matter, involving a claim by a lady who had slipped on a banana peel in a shopping centre, that was so tedious that the arbitrator at the District Court fell asleep. Counsel for the Plaintiff, who was seeking to make headway on what he may have hoped was a scintillating cross-examination, coughed loudly, and when that did not work, loudly pounded his brief on the bar table hoping to rouse the snoozing court official’s attention. It was all to no avail. The lady was not believed. Her account of where the peel was became hopelessly contradicted, and she lost her case.

As “banana lady” discovered, life, and the law, can be a slippery thing. More recently, the AV litigation team has seen a run of cases involving female victims, all involving apparent scams or fraud, and I thought it might interest our readers to hear about five of these fascinating disputes. For reasons of confidentiality and privacy, names and details which may identify the parties have been varied, but the essential facts of each case are accurate.

In one case, whilst our client was on extended leave, a fraudster cloaked her email account and purported to give instruction to her financial planner for hundreds of thousands

of dollars to be “invested” at “her direction”. The funds ended up in the fraudster’s hands, and our client (and the financial planner) only realised what had happened when the financial planner raised the investment with the client on her return from holidays. Fortunately, we were able to recover the majority of our client’s losses.

A different type of scam resulted in another client losing almost $2 million. She was befriended online by someone whom she came to believe was in love with her. She even went to the airport to welcome this person on the expectation of marrying him in coming days. That love interest was in fact a well-organised fraud syndicate with links in several countries in Africa and Europe, which managed to convince our client to heavily mortgage her north shore property to invest in their alleged “oil business”. We were able to provide some assistance, through taking action against an Australian party who had given her some advice at the time that she took out the mortgage.

Occasionally the apparent scam is perpetrated more openly, as happened to a client who got married in a big family wedding, or at least she thought that she had. Despite going through the rigmarole of a large scale wedding ceremony and attending receptions with relatives in two states, her ‘husband’ never actually signed anything that was legally binding.  They attended the registry several times and each time he ‘forgot his ID’ or something similarly pathetic. After taking advantage of her financially, the fraudster declared one day that they weren’t actually married, and called the

police to take her away. We learnt through this case that breach of promise of marriage was a tort in Victorian England but alas is not any more. 

Families can cause incredible misery to each other. A recent case we dealt with involved identity theft on a social media platform. The essential facts were that due to rival jealousies following an acrimonious marriage breakdown, a relative of the victim managed to hack into her social media account, and then post things on her behalf that were dreadfully damaging to her, such as supposed “confessions” of crimes she had never in fact committed. We were able to get the co-operation of the platform host through stern correspondence, to shut down the unlawful hacking of our client’s account, and ultimately the perpetrator was identified by reference to an overseas IP address.

Our final sorry tale involved a semi-literate owner of a large commercial building in Sydney. She was convinced to sign an agency agreement that granted the agent a percentage commission rate up to a certain fixed level, and then a right to take all of the proceeds over that fixed level. The very next day, the agent produced a purchaser who was willing to pay more than a million dollars above the fixed level, meaning that the agent would be entitled to well over $1 million commission, for one day’s work. The matter was subsequently settled on terms we are not at liberty to disclose.

The common thread through these various cases is that all were female victims, in most instances taken advantage of for

their trusting nature. It appears that personal fraud may be heavily gendered, which would be a very interesting subject for another article. In four of the five cases the law was able to offer some redress for the victim, and our litigation team was able to see some justice restored to the situation. In all cases, our staff shook their heads. Fact was stranger than fiction. Human nature never ceases to amaze.

Our impression is that the anonymity which modern technology increasingly affords will present an increasing threat to ordinary citizens. Extreme care should always be exercised, especially when dealing with large sums of money. Sound advice should always be sought before entering into any major transaction to ensure the bona fides of the other party. And when things go dreadfully wrong, as they did for the various victims referred to in this article, there is usually something which can be done – so please give us a call.

▣ Rod Berryrberry@avlawyers.com.auTelephone+ 61 2 8448 9814

The Sly and the Slippery cont.

As well as dealing with the dreadful loss and sorrow of losing a loved one when they pass away, there is also the burden of having to deal with that person’s property. In this step-by-step practical guide, estates lawyer Miranda Thompson explains what is involved.

A Grant of Probate (“probate”) is an order from the Supreme Court stating that the Will has been proved to be the last valid Will of the deceased. Obtaining probate allows an executor to collect and distribute the assets of the estate in accordance with the terms of the Will.

Very small and simple estates may not require probate, but in most instances it is required. If the deceased owned real estate in NSW the executor needs probate before the property can be transferred to a beneficiary or sold. Most banks and financial institutions require a probate before they will release funds to an executor and close accounts – they do not wish to run the risk of releasing funds to the wrong person! Share registries also need to see the probate before transferring or selling shares on behalf of a deceased estate.

An executor may not need probate if assets were jointly owned, typically the family home and joint bank accounts, or the funds in a bank account that are less than about $20,000.00.

The easiest option is to ask a firm like Atkinson Vinden to help you with the process. Usually funds from the estate will pay all of the costs involved in a law firm acting, and so an executor need not fear the legal bills involved in seeking help from a solicitor. There is a set scale of costs for the process of applying for probate regardless of which firm acts, and so it is worth choosing

a firm that you trust and which has the resources to handle the matter efficiently for you.

At AV we hold thousands of Wills in safe custody, all appropriately listed and easily located, but if you believe another solicitor may have prepared the will, we can contact that solicitor and arrange for the will to be provided to us.

At the first meeting we request information from the executor about the deceased’s assets and liabilities, as well as needing a copy of the death certificate. The task of locating the assets and debts involves writing to asset holders and creditors and asking for details and requirements for release and we do this as part of our service.

Following the meeting, we advertise the executor’s intention to apply for probate on the Supreme Court website and we prepare the various court documents. The executor signs the documents and they are lodged at the Supreme Court. In most cases probate is granted within 6 to 8 weeks after lodgement.

The executor may then collect and distribute the assets of the estate. This is called Estate Administration, and is not as easy as it sounds! Some executors choose to take over from here, but in most instances we are asked to complete the process – something we are very happy to help with.

ProbateFollowing the Will of your loved one

▣ Miranda Thompsonmthompson@avlawyers.com.auTelephone+61 2 8448 9878

Buying a Business?Asking the right questions can make all the difference

Commercial Lawyer Michael Smith advises on many business purchases and sales each year. In this helpful summary, he identifies some of the key issues prospective purchasers should keep in mind before signing up to a potential deal.The opportunity to buy a business can be both exciting and stressful. If done well, the astute business purchaser can achieve great success. However the decision to buy a business holds a number of risks. Below are just some risks which should be considered, from both a legal and practical perspective, before you make a final decision:

Vendor’s Motivation Why is the Vendor selling? Are they retiring, moving on to a new venture or do they foresee a downturn in the market and want to get out now? Is there something untoward that you need to be on guard about?

Structure of the dealWill you be buying shares in an existing company, or just the assets of the business. Buying shares is generally simpler, avoiding the need to transfer each business asset, however it also carries more risks as you will be responsible for all of the actions of the company, including those which occurred before you owned it.

Business AccountsHaving your accountant review the accounts will enable you to determine the likely fixed and variable costs of the business, helping predict future profits. You can also see if there are any sales patterns or irregularities which may be of concern.

LocationParticularly for a retail business, location can be make or break. Are there any recent or future changes in the local area which might have an impact on profitability? Are there any planned construction works in the immediate vicinity that may significantly deter new business?

LeaseWhat are the terms of the lease of the premises? How much rent will you be paying, will it increase, how long is left on the lease and do you have an option to renew it? These can all significantly affect profitability.

EmployeesAre any employees (or the Vendor) vital to the running of the business? If so, will they remain once you take over? Might you structure part of the purchase price as being payable on performance post-purchase, so as to ensure continuity and protect client and referral relationships?

Equipment

Who owns the equipment used to run the business? Is it subject to any leasing arrangement? Is the equipment in good working order?

Existing SecurityAre there any securities registered over the business or the vendor? Will these be released prior to completion?

TaxWhile duty on business purchases is set to be abolished from 1 July 2016, issues like GST, CGT and income tax remain relevant. Your accountant and lawyer can assist in this regard.

RestraintsYou should always ensure that the vendor is restrained from competing with you for a set period of time. What will be appropriate will change from business to business, however, at a minimum the restraint time should be sufficient for you to realise return on your investment, meaning that the vendor will be precluded from setting up a competing business, or referring customers to another business in the same industry for a set period.

LiabilitiesMake sure there is full disclosure of present and contingent liabilities of the business. To the extent that you are concerned about continuing historical liabilities, you may wish to consider acquiring only the assets and not the liabilities of the business.

The AgreementSpecial care should be taken in reviewing the sale agreement. It should cover all of the matters agreed between the parties and include appropriate warranties and guaranties by the Vendor. Do not rely on verbal promises – ensure that everything that is an important consideration in buying the business is reflected in the agreement.

Naturally, each business will have its own peculiarities to be taken into account, beyond those listed above. It is always advisable to include your accountant, business advisor and lawyer as early as possible in the process to help minimise your risk.

▣ Michael Smithmsmith@avlawyers.com.auTelephone+ 61 2 8448 9833

A N A T K I N S O N V I N D E N T R A I N I N G A N D N E T W O R K I N G E V E N TM AY 1 0

S H E R A T O N O N T H E P A R K , S Y D N E Y

Atkinson Vinden’s major business networking function this year is Insights 2016, to be held at the Sheraton on the Park in CBD Sydney on Tuesday 10th May. Managing Partner Rod Berry explains what to expect and why you should be there.

Business owners love to discuss their businesses. Whether we sell artificial limbs, financial products, professional services or commercial properties, we share many common concerns. Technology is rapidly transforming consumer demand and expectation, and an increasingly regulated economy gives rise to similar frustrations. Shared macro economic conditions impact on all of us. We have a lot to talk about and learn from each other.

This year Atkinson Vinden has decided to move away from our traditional breakfast seminar lecture format to something that encourages much more dialogue and mutual learning. We are therefore delighted to invite you to attend our flagship event of this year, a full-day business community function, which we are calling, “Insights 2016”.

We are planning a fantastic program, which includes a mix of business networking opportunities over lunch and late afternoon cocktails, dynamic external keynote speakers, and highly relevant targeted legal updates by senior practitioners of AV. There will be opportunities to share ideas and identify ways to improve your business, all in a convivial and supportive environment. The fundamental purpose of the day is that we all come away with fresh insights that we can implement in our businesses.

We are limited to offering 200 places to this event, and so if you are interested, you should register your interest immediately by contacting Janice Martin on (02) 9411 4466. Tickets are $220 each, for which you will receive access to the full day’s events, including buffet lunch and late afternoon cocktail event.

Make sure you register – it is a must for anyone wanting to grow their business in 2016.

Confirmed Key Note Speakers:

• Acclaimed corporate psychologist Rob Pyne, of X or Y Decisions will be speaking to the topic: “The Eye of the Storm: Decision-Making and Leadership”

• Property Guru Richard Sheppard ,of InSynergy will be providing current insights into the property market and current business environment

• Digital Marketing specialist Stephen Mumford, of The Web Showroom addresses the topic “Turning on the Tap – Harnessing the Digital Revolution to Transform your Business”

• Video Communications expert Robert Moorman of Hunting With Pixels will highlight the potential for video content to extend your brand presence in the marketplace

Targeted Legal Updates:

• 7 Must-Know Business Law Changes in 2016

• HR War Stories - the Dos and Don’ts • Legal Implications of Technological

Change in Your Business • Protecting Your Personal Assets

the webshowroom

And supported by:

Rob Pyne

Richard Sheppard

Stephen Mumford

Robert Moorman

Sheraton on the Park

Lawyers

Proudly brought to you by:

You & Your NeighboursMaximising the sale price of your property

We have all heard stories of developers approaching homeowners to sell up, often with a financial carrot. The tide is now turning, with canny homeowners banding together to approach developers, and in some instances achieving incredible financial returns. In this article Senior Associates Anne Goodrick (Accredited Property Law Specialist) and Sue Falkner (Licensed Conveyancer) explain what is involved based on their growing practice in this area.

The burgeoning development market in Sydney, fuelled by major infrastructure projects such as North Connex, West Connex and North West Rail Link, has created potential for residential land to be re-zoned for higher density development, and an increase in neighbours joining hands to achieve a better outcome and to avoid being “cherry picked” by a developer.

We have acted for many such groups comprising as few as 4 and as many as 59 landowners. It can be a tricky (but ultimately) worthwhile exercise to get all the neighbours to agree to the parameters of a deal for marketing the whole site, rather than having the developers call all the shots. A word of warning-it will test relationships and it can be like herding cats!

We can guide the process and suggest that the neighbours enter into a form of marketing agreement that sets out the parameters of the deal regarded as essential with a view to binding all members of the group to that agreement so that when an offer comes, it should be a relatively simple process to finalise the deal.

Some key points:

• The owners need to establish how the sale price and the costs will be shared – generally that is on a land area basis;

• The fact that someone has a better house is irrelevant – developers are buying land;

• Contracts for each property should be interdependent – they stand or fall together;

• Acceptable timeframes should be specified;• Consider requiring each landowner to give an irrevocable power of

attorney to others so that in the case of death or recalcitrance, the group can be sure that the deal will proceed.

Getting the essence of the deal documented is not where it stops. Once a developer is on the scene and negotiations are underway, it may be difficult to negotiate the final form of the agreements, particularly if the landowners look for an “uplift” on the price if the developer can get a greater floor space ratio and build more units, and although documenting that right can be tricky, we have significant experience in that area.

In the last few years we have acted for landowners in many of these deals, and although some take a while to get over the line, most have been successfully finalised. Even though some parts of the residential building market are slowing, the continuation of infrastructure work and rezoning of large areas of land in and around Sydney will still make this a worthwhile consideration for many in 2016.

� Anne Goodrickagoodrick@avlawyers.com.auTelephone+ 61 2 8448 9859

� Sue Falknersfalkner@avlawyers.com.auTelephone+ 61 2 8448 9832

Training For Business Leaders

AV Special Offer

Through advising hundreds of businesses, we see many patterns - recurring challenges and opportunities that in appropriate circumstances we can share with others. Common issues include managing increasingly complex commercial contracts and compliance requirements under the Australian Consumer Law, the ever-changing employment law/HR landscape, equity sharing arrangements and business succession planning.

One way we can pass on this knowledge is through targeted training sessions for business clients of our firm. We can come to you, to meet with those in your business whom you think will benefit, and go through the areas where you could do with some help. We can provide step-by-step education in any area of law, or alternatively field your questions to build up practical skills in handling the issues at stake.

Employment law is a good example. We act in dozens of unfair dismissal matters each year – and the unfortunate truth is that in many instances, clients have made simple mistakes due to a lack of understanding of the appropriate steps which need to be followed. A one hour session with those in your business who make hiring and firing decisions will mean much greater confidence in managing these issues, and hopefully the avoidance of expensive future cases in the Fair Work Commission.

If your business has a particular knowledge gap, or would like the opportunity to provide training to your senior management team about a key area where law and business intersect, then touch base with one of the AV Partners, Rod Berry or Sheena Joshi, and we can plan and deliver appropriate training that will equip your leaders to approach their work with confidence and insight.

Call 9411 4466

Lawyers

Retirement Villages and Aged Care FacilitiesCase Study: Buying & Selling Businesses

Each year AV acts on the sale and purchase of many businesses. Since the inception of the latest aged care reforms and as the property sector continues to grow, we are seeing increased activity in the development and sales of both aged care facilities and retirement villages.  In this article Senior Partner Sheena Joshi considers some of the key issues that parties are likely to face in buying or selling a residential aged care facility or a retirement village. The principles are similar to acquiring many other types of businesses, and are likely to be relevant to many of our readers.

If you are intending to buy or sell a residential aged care facility and/or retirement village it is imperative that the sale is structured in a manner to best suit your needs from a commercial and operational perspective as well as to limit the risks with any transaction of that type.

Contracts and structure of transaction

The nature and content of the sale contracts are vital. A standard ‘off the shelf’ type contract is typically inadequate to cover the unique circumstances of each individual sale. A threshold issue is whether the transaction is structured as a share sale or an asset sale. In a share sale you buy the actual corporate seller entity, whereas in an asset sale you buy the property that makes up the facility and business.  You need to consider the risks and benefits of each approach from both a liability and taxation/duty perspective.

Usually there will be a contract for the real property (being the

land and buildings) and a separate contract for the business and other assets (can be either or both a residential aged care facility and/or retirement village).  While less common, some transactions may involve the purchase of the business of operating the facility/village only – in those cases there would need to be a lease or other arrangement in place for the use of the land and buildings for the buyer as operator after settlement. This type of transaction can be more complex and will usually involve a higher level of scrutiny from regulators.

The contracts must clearly set out the assets and liabilities that are being transferred (or not transferred) between the parties for the agreed purchase price as well as timing for various stages during the transaction.

A buyer should consider the warranties and indemnities provided by the seller as the buyer will usually inherit all liability of the seller entity after settlement. There is always an element of commercial risk but including the proper provisions will seek to limit that risk to a manageable level. A prudent seller will also want to include some correspondence warranties and indemnities from the buyer, mainly in respect of anything that happens after settlement. 

Due diligence

From a buyer’s perspective a thorough due diligence is critical.  Effective due diligence should give a buyer far greater clarity on what they are buying which is of course essential to setting a price, as well as to limit the buyer’s risk of any costly surprises post-settlement.

It will also give the buyer a chance to seek a response from the seller on any issues that arise while they still have that leverage – once the contract is unconditional the seller will generally be less motivated

(and definitely less obligated) to provide any such assistance.

From a seller’s perspective it may be that the deal is structured on the basis that the buyer’s recourse is limited once they conduct their due diligence enquiries.  As an example that could mean if there were any issues reasonably discoverable by a prudent due diligence then the seller wears no liability in respect of those issues. A buyer should seek legal and accounting advice as part of their due diligence.   They should also consider planning consultants, building professionals and to assist with the due diligence process depending in the nature of the assets being purchased.

Aged care

In the aged care sector, there are some very specific considerations that apply, which we can guide clients through. Examples include resident/care recipient agreements – it is important to review a sample of the agreements to check for compliance but also to consider whether any particular arrangements have been offered to any resident that the buyer will have to meet post settlement. There may also be significant capital expenditure issues that will need to be addressed such as fire safety requirements post settlement. Consideration needs to be given to any significant outstanding compliance issues under the Aged Care Act, any significant ongoing resident complaints that have been long standing and are likely to create significant operational drains post settlement, the value of the bond pool, and the nature and type of allocated places being sold as part of the assets and any conditions attached to the places to be transferred

Retirement villages

Some key considerations that apply in the retirement village context include types of tenure – it is important to look at what type of

Children and SeparationFamily Law

Senior Associate Annabel Murray (Accredited Family Law Specialist) and Solicitor Eva Rickert assist numerous AV clients each year through the emotional roller coaster ride that comes with relationship breakdown. In this article, they explain the role that family lawyers can play in ensuring the best outcomes for the children of the relationship.

Determining care arrangements for children is usually one of the hardest aspects of separation. Indeed for many of our clients it is the most difficult thing they have or will ever have to face. Our role as legal practitioners is to provide much needed guidance and clarity in what for many is the hardest time in their life.

In practice, we find that disputes often arise because of misconceptions parents have about their rights when it comes to their children. Our laws presume that parents have shared responsibility for their children. What parents often mistakenly believe is that this same presumption applies to the care arrangements of the children, and that parents have a right to equal custody arrangements. In fact this is not the case. In determining care

arrangements, the best interests of a child trump all other considerations as being of paramount concern.

Sadly, what we often see is a child’s best interests being overlooked by parents who have lost sight of the relationship their child has with the other parent, and the importance for their child to continue fostering that relationship. When approaching a court for orders, judges will view the actions of a parent very dimly if that parent has attempted to frustrate contact between the child and the other parent.

Our role as legal practitioners acting for either party is to direct the focus back on the children and the children’s best interests. Where possible, our focus is on staying out of court and keeping parents in control of what care arrangements will work best for their children. Often professional family counsellors assist the parties, and where necessary the court, in determining what is best for the children. Compromise is almost always the wisest path.

We assess each case on its own merits. In some cases, staying out of court is not an option because of issues such as risk of violence, abduction, or neglect, to name a few. In those instances we are able to obtain urgent court orders to protect children who may be at risk.

If you are going through a separation and are looking for guidance and clarity through the process, or if you are concerned about your children’s safety and need urgent assistance to protect them, we are here to help.

tenure applies to the village – that may affect your profitability and also perceived attractiveness of the units to prospective residents in the market.  Some residents may prefer the perceived security that a registered lease provides in contrast to a licence. There are also different financial models/deals which apply in one scheme.  The scheme operator may have also agreed to various one-off arrangements with residents which would affect a buyer as the new scheme operator on their departure, and enquiries should be made as to whether there are any rental arrangements in the village

Other issues and considerations

Buyers should also consider any duty exemptions as part of the process – depending on the circumstances not-for-profit organisations may be entitled to a total or partial exemption of transfer duty payable on an acquisition. Additionally, operators and providers will also need to manage aged care document reviews, retirement village turnovers and ongoing legal and compliance issues post-settlement.

Conclusion

Buying or selling any business is complex. It is vital that any transaction is structured properly and that you obtain the right advice along the way to avoid any unexpected issues and to limit risk.  We are well placed to assist both sellers and buyers at each step in the transaction.

▣ Sheena Joshisjoshi@avlawyers.com.auTelephone+ 61 2 8448 9852

▣ Eva Rickerterickert@avlawyers.com.auTelephone+ 61 2 8448 9836

▣ Annabel Murrayamurray@avlawyers.com.auTelephone+ 61 2 8448 9834

Retirement Villages and Aged Care Facilities cont.

Getting Best Value from your Lawyers

How do you choose your lawyer? What are you looking for? And how do you know that you are getting good value for money? In his role as Managing Partner of AV, Rod Berry receives calls every week from people looking for legal help, often having had less than ideal experiences elsewhere. What questions do they ask, and more importantly, are they asking the right question?

Last Christmas I caught up with my cousin’s husband, who practices law in London, specialising on money laundering and major fraud cases. “How much do you charge your clients, per hour?”, I asked him casually one sunny Sydney afternoon. “850 pounds per hour,” he replied just as casually. I was incredulous. “That’s $1700 per hour! How can clients afford that?”. He laughed, “By the time they come to see me, it really doesn’t matter how much I charge. They are in big trouble, and I am one of only 4 or 5 lawyers in the UK who can help them.”

I start this discussion with hourly rates because it is one of the most common questions I get asked. “What are your hourly rates?” It is a question which frustrates me, because it comes with an assumption that in all other respects the service will be the same whichever firm a person uses, and that the only distinguishing feature is cost. That is simply not the case. An advanced lawyer, who charges $650 per hour, may be able to deal with a seemingly complex issue in an hour or two, drawing upon experience and wisdom evolved over years of practice. A less experienced lawyer, who charges only $300 per hour, may muddle their way through the same matter over many more hours, still not provide good advice, and end up costing two or three times as much.

The most important question to ask is,

If their answer is “Yes”, then ask them how they solved the issue. Don’t be the guinea pig for your lawyer. Be his or her fifth, or tenth or preferably fiftieth case on the issue. If you engage a new lawyer, it should become apparent fairly quickly if they know what they are doing. They will be able to respond confidently to your questions, and provide you with a clear direction and strategy for your matter.

Equally important is being clear on outcomes. Tell your lawyer what you want to achieve at the end of the process. Is that outcome even possible? If not, what is realistic? Knowing how things are likely to pan out will help a client make good decisions from the very outset regarding how much they are prepared to invest in the legal process, or if some other non-legal avenue may be better in the circumstances. There are many situations where lawyers cannot provide certainty, no matter how clients crave it. Beware of the lawyer who overpromises.

Like many things in life, some personality types will be a better fit for you than others. Some clients are extremely risk averse. They will want a lawyer who will advise conservatively, and they won’t make any major business decisions without consulting their lawyer. Other clients are prepared to take educated risks, and will prefer lawyers who are prepared to argue novel points, and push where other lawyers might throw in the towel. Good questions to ask include, “What is the most likely outcome” and “What risks do you perceive in pursuing this matter?” Although many lawyers will refuse to

answer this question, it is reasonable for you to ask, “What would you do if you were me?” Some lawyers will focus on the negatives, others will see opportunity. Know yourself, and you will have a clearer sense of who might be a good fit.

Another consideration I try to highlight in these conversations is the question of values. Ideally, you should try to find a firm that shares similar values to you, because there will likely be the recurring need for legal help over a person’s life. Whether it is buying or selling a house, drafting a will, administering an estate, advising on a family dispute or helping with business issues, if you find a firm that you feel comfortable with, you will be able to return to them over and over again, confident that you have someone in your corner to help you through difficult times.

“Have you ever had a case like this before?”

▣ Rod Berryrberry@avlawyers.com.auTelephone+ 61 2 8448 9814

Unfair Contracts Open to ChallengeTightening up your agreements

Upcoming laws will challenge many standard terms used unfairly in business contracts. Commercial lawyer Michael Smith explains.

Have you ever been asked to sign a standard agreement, and taken the time to actually read the fine print? If you have, you may have been surprised by some of the extraordinary terms that can be hidden in such contracts. It might be that the contract claims that there is no

right to claim any damages due to breach of contract by the supplier.

Recently the federal parliament extended unfair contract protections to small business contracts. This allows for the party adversely affected or the regulator to request that a term be found “unfair” and therefore void. The legislation will come into force on 12 November 2016 and apply to contracts entered, renewed or terms that are varied on or after that date.

These protections will apply where the contract is a “small business contract”, the term concerned is “unfair”; and the contract is a “standard form contract”.

How is a “small business contract” defined? It must satisfy three criteria:

a. It is for the supply of goods, services, land (or an interest in land, e.g. a lease), a financial product or a financial service;

b. When the contract was entered one of the parties employed fewer than 20 persons (in certain circumstances this may include casual employees); and

c. Either:

i. The upfront price of the contract is $300,000 or less; or

ii. If the contract is for more than 12 months (e.g. a 3 year lease), the upfront price is not more than $1,000,000.

Assuming the contract satisfies this definition, the complained about term also must be held to be unfair using three key tests:

1. It creates an imbalance between the parties;

2. It is not reasonably necessary to protect the legitimate interests of the party advantaged by the clause; and

3. It would cause detriment to a party if the clause was relied on.

Examples of unfair terms may be ones granting unilateral rights to vary the contract, allowing one party but not the other to cancel the contract or limiting one party’s liability under the contract. Note that the upfront price, or the subject matter of the contract (i.e. what is being paid for) are not terms capable of being found “unfair” under the new laws.

Lastly, for the legislation to apply, the contract must be a standard form contract. Although there is no set definition for this term, some of the indicia are where only one party has

the bargaining power, where the contract is prepared prior to negotiations being entered into and where negotiations are not allowed. Common examples of standard form contracts could be online terms and conditions, trading terms annexed to order forms and retail leases.

If your business uses standard form contracts within the quantum range discussed in this article, then it is important to have the provisions reviewed. In particular, if your business model relies upon the assumption that you have enforceable exclusions or limitations from liability, it would be prudent to ensure that such terms do not fall foul of the new laws. If you regularly engage with suppliers or third parties who impose template terms and conditions, you may also wish to review those agreements and consider whether the new protections may assist you in the future.

▣ Michael Smithmsmith@avlawyers.com.auTelephone+ 61 2 8448 9833

Cheap & DirtyShort Term Justice for Builders

Litigation Associate Tom Howard often finds himself sifting through the wreckage of building disputes. In this article Tom explains the processes involved in builders seeking to enforce payment for their work, an issue that often arises when there is a dispute over the quality of that work.

Any builder will be familiar with the Building and Construction Industry Security of Payments (SOP) Act, or its various interstate equivalents. Before the SOP Act, large construction jobs could be delayed as a consequence of relatively minor disputes between principals and contractors over progress payments, and when a building job grinds to a halt, costs can start to pile up (equipment hire, liquidated damages et cetera).

The SOP Act provides for a ferocious mechanism to get money moving on construction jobs to ensure that these sorts of costly delays don’t occur. It involves a number of quick stages as follows. A contractor issues an invoice under the SOP Act (known as a payment claim). The principal has 10 business days (or less, if

stated in the contract), to put on a response (known as a payment schedule). If the principal proposes in the response to pay less than the amount claimed, they must give reasons. If the principal fails to serve the payment schedule in time, then the contractor has two options:

1. The debt can be pursued through

a court, and the principal is

barred from pleading any

objections to the claim other than

jurisdictional objections (in other

words, the claim is a free kick!); or

2. The contractor can issue a notice

of an intention to have the matter

adjudicated under the SOP Act.

If the principal does serve a payment schedule in time (and proposes to pay less than the amount claimed), and if the contractor disagrees with that lesser amount, the contractor can apply to have the matter adjudicated.

Adjudication is a cheap and dirty process. The SOP Act provides an extremely short

timeframe for submissions, and is utterly ruthless in terms of what is allowed and what is not allowed. The principal cannot raise any matters at adjudication that were not raised in the payment schedule, so their hands are tied by a position which was reached in at most, 10 business days, and likely under considerable stress of competing commitments. Adjudicators are under significant pressure to make quick decisions with limited information, no face time, and with very limited input from the parties.

The effect of all this is that both sides to a dispute under the SOP Act need to make quick decisions on extremely short notice that can drastically affect their rights and entitlements down the track. While adjudicated decisions are only interim (that is, once money has moved and the construction job is back on track, the parties can go through the much more thorough and forgiving court process to establish their rights in a final sense), they often represent the practical end of disputes having regard to the costs associated with going to court.

An in-depth knowledge of the SOP Act, its procedures, and the case law that surrounds it is absolutely mandatory to gaining a

good result when disputes arise in building works. A technical slip might invalidate your claim altogether (if you are a contractor), or leave you with no choice but to pay a claimed amount without dispute (if you are a principal). Good legal advice can maximise the chances of success at adjudication, and take the pressure off during the crucial but brutally short time periods imposed by the SOP Act.

▣ Tom Howardthoward@avlawyers.com.auTelephone+ 61 2 8448 9811

Cheap & Dirty cont.

Unhappy Beneficiariesleft out of a will

Each year we assist hundreds of people with their estate planning needs, including drafting wills and powers of attorney. We also administer dozens of deceased estates, helping executors with what can be a burdensome task. What some may not be aware of is that AV has a growing practice assisting families in dispute over wills, such as when a person discovers they have been left out of a will. Associate Caitilin Watson explains.

“But I’ve spent the last 20 years living with mum. She couldn’t look after herself. How can she have left me nothing?”

“How can my aunt leave her entire estate to people she barely knew? It should go to her family.”

“Why is my step-mother changing what she agreed with Dad, now that he’s gone? Her money was meant to go to her children and dad’s money was to come to us.”

I have heard each of the above statements from distressed people in the past few months in my work handling disputed estates. When someone has passed away, they are no longer available to explain their wishes, or why they made their will in a particular way. In cases where the provisions of a will come as a surprise to family members, this can raise many questions and cause distress for those left behind.

Under the legislation in NSW governing the making of wills and administration of estates (Succession Act 2006), the court can make orders varying the terms of a will to provide for someone who has been left out, or to make greater provision if what has been gifted is

inadequate. The circumstances where such orders can be made are extremely limited, and of course if the court makes such an order, it must necessarily result in someone else receiving less.

One recent example stands out to me. Gerald stopped working and moved in with his elderly parents to care for them. As the years passed, they became frail and needed full time care from Gerald. He cared for them lovingly for over a decade. His father passed away and then his mother after a long decline. Under his mother’s will, Gerald was left the home they lived in together. His two sisters received a small legacy payment. One sister has challenged the will in the Supreme Court, claiming Gerald forced their mother to leave the property to Gerald. Gerald is defending the claim and will need to lodge a claim seeking provision from the Estate. If the will is found to be invalid, Gerald will need more from the Estate because he would be penniless and homeless without provision.

In a different case, David’s father George passed away leaving his second wife Emma, his three adult children and her three adult children. George and Emma found love late in life aged 70 years. They had each raised three children with their first spouses. When they married, they agreed their wills would leave his money to his children and her money to her children. All the children are in their 40s with families and commitments of their own. Now Emma, aged 85 years has challenged the will, claiming she needs money for her retirement. David and his siblings are defending the will.

One practical step that can help avoid acrimony is if the will-maker leaves a letter with their will, explaining their decisions. It may be that there was a very good reason for a parent leaving more to one

child than another, for example where the

parent has gifted a large amount to one of their children during their life, so

that they are seeking to achieve parity by gifting a greater amount to the other children later on.

Our experience is that a large proportion of disputes in this area are ultimately driven by unresolved past conflict between family members. That is why holding a family conference with a skilled mediator can provide an opportunity for those past hurts to be articulated, and then to work out together the best way to resolve any remaining disappointment about the gifts in a will. Executors can agree to enter into a deed of family arrangement to vary the provisions in a will if they believe that it is in the best interests of the administration of the estate. For example, they might reasonably form the view that a settlement will avoid a large amount of legal fees being incurred, something which no doubt the will-maker would never have contemplated.

Each year we act in various estate disputes, whether it is helping executors to respond to angry beneficiaries, or in some cases helping family members understand what might be possible to address their disappointment in being left out of a will. It is an emotional area of legal practice, but also highly satisfying when resolution can be found and families find a way forward together.

▣ Caitilin Watsoncwatson@avlawyers.com.auTelephone+ 61 2 8448 9825

Over the years Atkinson Vinden has worked with hundreds of businesses, assisting with an array of recurring issues, and forging solutions that have been of lasting value. To make this knowledge and experience available to as many business clients as possible, we have launched a new practice area, which we are calling the Business Advisory Team. Associate and head of our Business Advisory Team, Janelle Boutros, explains how her team can help you.

It is great to meet clients with a vision for where they want to take their business. I have seen many good ideas translate into successful commercial ventures. I have also come across many businesses at the crossroads, perhaps dealing with internal ownership difficulties, changes in the marketplace, or seeking a new direction. All of these situations provide opportunities, and I enjoy my role as a legal advisor most when I can come alongside clients to provide the legal underpinnings that provide them with confidence to move forward.

Our Business Advisory Team is committed to providing practical legal support and advice to businesses at those key moments in their journey, whether at the time of their inception, during periods of change and development, and renewal, or at a time when new ownership options are seriously on the table.

One of the features which makes our service unique is that we offer an interdisciplinary approach. Our team consists of lawyers with backgrounds in commercial, property, litigation and employment, so that we can provide rounded advice that takes into account all of the relevant considerations and potential outcomes.

These are just some of the services our Business Advisory Team offers our clients:

*Structuring - It is important to determine what vehicle you will utilise to run your business considering your position now and where you want your business to be in the future. Sole trader, partnership, joint venture, a company or a trust? What is right for you and your business?

*Staff - Having good employees is crucial in developing a fruitful business. It is just as important to ensure that these employees are retained correctly with appropriate job descriptions and employment agreements so everyone knows what their roles, duties and responsibilities are. Further, when conflict arises, our team can guide you through the process, which may involve the disciplining or even termination of an employee.

*Business Contracts - a hand shake is not good enough – make sure your contracts are in writing and protect you accordingly should you wish to sell the business or the contractual relationship goes sour.

*Cash Flow Protection is crucial to the health of all businesses. Fundamental to financial health is having the appropriate terms and conditions which apply to the sale of items or services. Your terms and conditions will give you the appropriate method to facilitate any debt recovery, privacy issues, warranties to any goods and services and return and refund policies.

*Protecting your intellectual property is extremely important. This includes your business name, logo, ideas and your systems that you have in place which usually is the goodwill of your company. Without having the appropriate protections, agreements and ownership of intellectual property any other business or person could be representing itself as your business and you may have no action against it without the proper documentation in place.

*Funding - Will you utilise directors loans, borrow money from the bank or from a third party, and what assets will you use to secure your finance? Are the directors signing personal guarantees – make sure you know what your signing and what your risks are.

Whilst our team may assist with your general business needs and interests, we also have specialists who practice in the niche areas of dispute resolution, personal properties securities, real estate agency law and franchising. Please contact me if you would like to explore how our Business Advisory Team can help you.

Launching AV’s Business Advisory Team

▣ Janelle Boutrosjboutros@avlawyers.com.auTelephone+ 61 2 8448 9874

Country Sports, Leg Inspections, and Eccentric VigneronsReflections on a lifetime in legal practice

AV Consultants Guy Vinden, Frank Windeyer and Bill Dockrill have together accumulated more than 130 years’ experience working as lawyers. In this article these three very senior and highly experienced practitioners share some of their memorable experiences and accumulated wisdom.

Looking back on a lifetime of legal practice, Guy, Frank and Bill have many fond memories. For Guy, a standout experience was acting in a High Court appeal in the matter of JK Ross v Alice Chalmers: “The case took almost 10 years from start to finish, and in that time I travelled throughout regional NSW, Victoria and Queensland, witnessing affidavits from farmers and learning a lot about Australia’s agricultural industry. I saw a lot of countryside, and learned a lot about life.” He also laughs as he ponders many of the vignerons in the the Hunter Valley whom he has acted for over the past 25 years. “There are many eccentrics in the wine industry!” Bill’s memories also turn to time spent in the country. He remembers many happy years practising as a partner at Everingham Solomons in Tamworth, before returning to the big smoke. Being a lawyer in a country town was considered a very significant community position, and so for Bill this entailed becoming the President of the Cricket Association and taking up refereeing local rugby.

Frank’s memories are a little different. One incident occurred when he had just become a partner at Windeyer Dive, when because of the absence of the other partners, he was required, on behalf of an insurance company client, to inspect the leg of a plaintiff to ascertain the extent of scarring in a personal injury claim. “It was a most peculiar and uncomfortable situation, not being an expert in skin conditions.” Frank also recalls with fondness the rather formal titles

used in legal offices in the early years. It was traditional that junior solicitors refer to partners as “Mr so and so,” and Frank was himself used to being called “Mr Windeyer” or even “Mr Frank” before joining AV. “When I first got to AV I was a bit surprised to find that the youngest mail junior called me by my first name!”

It is fascinating to trace each lawyer’s evolution in legal practice. All three had experience at a top tier Sydney CBD firm. Bill started off at Blake Dawson (now “Ashurst”), Frank started at Allen Allen & Hemsley (now “Allens”), while Guy started off at Baldick McPherson & Walsh, which eventually became part of Corrs Chambers Westgarth. There seems a consensus that starting off in a top tier firm was an excellent grounding in the law. It gave each of them the chance to observe top lawyers advising major clients, to receive a breadth of experience, and to participate in significant legal work.

As a new recruit at Blakes, Bill sat between Graham Hill and Arthur Emmett, both of whom were destined to become judges. Frank also had judicial connections – his father sat on the High Court and his brother served many years as a very highly regarded Supreme Court judge. It is obvious that these foundational experiences gave all of our team a genuine love for the law.

Over time, each came to focus in specific areas of legal practice, no doubt reflective of their particular personalities and interests. For Frank, it was wills and probate, as this was always a major component of the Windeyer Dibbs practice, and he enjoyed the care and skills required in estate planning, as well as thriving on the personal contact with families which often bridged generations.

Guy and Bill think about some of the major property development work they have advised on. Bill recalls with enthusiasm the exciting days of the late 1980s and early 90s, when the idea of selling off the plan and community title were so new. “We acted in a lot of the early

major developments, in places like Darling Harbour, Sydney Park at Alexandria, the IBM building, Observatory Hill, the Port Jackson Tower at Milsons Point, Stocklands at St Leonards, and the Portico at Wynyard.”

“The practice of law often produces intangible results,” explains Guy. “When I work with a property developer, I get to walk the site, identify the opportunities, prepare options and apply for rezoning. I can help with the DA process and dealing with Local Councils and Regional Planning Councils, and advise on building contracts. And as the development rises from the ground, I get to see something tangible, something that will be around for a very long time.”

Part of their success has come down to seizing opportunities when they presented themselves. Guy recalls this being the case in relation to his decision to focus his attentions on the Retirement Villages and Aged Care Sector. “I saw the trend with the ageing population, and growth in that industry, and realised that my extensive experience in commercial, property and development work meant I was ideally suited. It has become an increasingly regulated industry, and so expertise in that industry is a very valuable commodity.”

One interesting point of discussion is around how the practice of law has changed over the years. Guy observes that it is no longer possible to bluff your way through, as the law has become increasingly complex. “Once upon a time if you were asked something you did not know, you simply read up on the area and became an instant expert. These days the law is changing too rapidly, and you have to specialise”.

All three lawyers agree that there is less trust in the profession generally. Says Bill, “Up until perhaps 15 years ago, you could take lawyers at face value more. If someone gave you an undertaking, you could rely on their word. These days, you need to be more guarded.” Frank speaks of a more pressured attitude amongst legal

practitioners, “Many fellow practitioners are more aggressive and demanding. Often I am complimented by opponents for being so honest and open – apparently such politeness is in short supply these days!”

Clients want more too these days. Says Frank, “I have witnessed the transition from ordinary mail to facsimile to email. There is now an expectation from clients that there will be an instantaneous response.” Frank also links the internet with an increasing number of what he describes as “bush lawyers”. He thinks the timeframes of legal practice have changed too. “We are definitely busier now. Clients expect us to work at a much faster pace.”

So what does the future hold? Guy and Frank are still enjoying doing legal work and serving clients. Says Guy, “I still love the client relationships. I feel physically and mentally fit. And the work is as interesting as ever.” Frank feels similarly, “I really enjoy discussing legal issues with my colleagues at AV; I love the professional rapport and the challenge of keeping up the with latest developments.”

Bill has chosen the path of semi-retirement. He is no longer actively doing legal work himself, but enjoys working with AV in a liaison capacity, linking longstanding clients with other practitioners at AV, as well as mentoring some of our younger lawyers. “We have some great lawyers at AV, and I really enjoy time spent at the firm talking with the team about current matters and keeping up with longstanding clients.”

Guy Vinden

Frank Windeyer

Bill Dockrill

▣ Rod Berryrberry@avlawyers.com.auTelephone+ 61 2 8448 9814

Country Sports, Leg Inspections, and Eccentric Vignerons cont.

ICT Contractsrequire specialist skills

AV Commercial Lawyer Michael Smith worked for over a decade in the ICT (Information and Communications Technology) industry before entering a career in law. He regularly encounters practitioners in the legal industry attempting to prepare and negotiate ICT contracts without understanding basic ICT concepts, or the commercial concerns that a business operating in that space would have. In this article, Michael demonstrates from four simple examples how understanding ICT issues allows him to provide real value to clients.

Picture this, you are a software developer who has been approached to develop an app. The app allows users to enter their symptoms and then determines what their medical issue might be.

The client provides their “standard” supplier contract which includes these provisions:

1. You will be paid on final acceptance of the app;

2. You indemnify the client against any loss or damage;

3. You guarantee performance; and

4. You assign intellectual property (IP) to your client.

Your lawyer takes a look over the contract and thinks that looks fair, after all, you’re the app developer, you should be able to make those commitments.

Michael Smith

32

You sign the contract, start development and think all is well.

Unfortunately, you have opened yourself to significant risk, in areas over which you may have little control.

1. Payment on Acceptance

Has this ever happened:a. You prepare the first version of the app;b. You send it to the client for input;c. and wait;d. and wait;e. and wait;f. while your bills pile up.

It would have been better to have milestone or monthly payments, allowing you to be periodically paid for work completed.

2. Indemnity

Imagine a user types in their symptoms, hits submit and gets told they have African Trypanosomiasis, despite never having been anywhere near an African tsetse fly. They panic, order expensive tests, which come back negative and promptly sue your client.

Your client then tries to pass liability on to you, even though you know nothing about African Trypanosomiasis or its symptoms.

Had the indemnity clause been balanced, ensuring that the client was liable for any medical content, you could well be off the hook.

3. Guarantee of Performance

As anyone who has spent any time working in IT knows, technology frequently fails. It is not possible to give a blanket guarantee that

it will work. What you might promise is that the app will work substantially in accordance with specifications, and that you will offer free tech support for a set period of time (and remember to factor this into your price).

It is also a good idea to only guarantee performance on devices above minimum specifications, to avoid complaints when someone tries to get the app working on their iPhone 3.

4. Full Assignment of Intellectual Property

It is not uncommon for software developers to reuse previous code for new pieces of software. This is all well and good, however can create issues if you have effectively assigned that code to your client.

You could find yourself disentitled to use the code, or having to pay royalties.

Rather you should grant the client a non-exclusive licence to use the code, or exclude your background IP from the assignment.

If you have a commercial agreement that might benefit from Michael’s industry knowledge, he would love to hear from you.

▣ Michael Smithmsmith@avlawyers.com.auTelephone+ 61 2 8448 9833

33

ICT Contracts cont.

Life Sciences & Health CareA booming industry on Sydney’s North Shore

Atkinson Vinden has a growing presence in the Life Sciences & Health Care sector, and is an active member of the Medical Technology Association of Australia (MTAA). Senior Partner Sheena Joshi explains what is involved in this exciting area of legal practice.

Q: What sorts of businesses are involved in this sector?

Sheena: Many different business types, but all having a common interest in better health outcomes. It includes companies who manufacture or import and distribute medical devices, pharmaceutical companies, medical practices, dental and radiology practices, and all allied health types. It even extends to veterinary practices!

Q: How did AV get involved in this area?

Sheena: Serendipity! Our firm is situated right in the heart of where the action is – with business precincts located at our doorstep at Macquarie Park, Pymble and Belrose, we have great opportunities to work with substantial medical device and pharmaceutical companies. Over many years we have also built up a substantial number of clients involved in medicine and health care, and we have a strong core of skills in the areas that these businesses generally require our help. It has been a natural fit, and quite organically we have grown a strong client base in this field.

Q: What do you like about working with companies in this sector?

Sheena: There is a strong set of values that I resonate with. Patient care, and a concern to improve health outcomes. We have also found that a lot of the clients we work with in this sector are a strong cultural fit for our firm, especially so far as age, education, and concern for issues such as a work-life balance.

Q: What sort of work does AV do for life sciences businesses?

Sheena: It’s an incredible array of issues. Given the massive amount of regulation specifically aimed at the life sciences industry, a lot of emphasis is upon compliance. We also help with product liability issues, professional negligence and misconduct, intellectual property, competition and trade practices. We also prepare practical commercial documents such as distribution and indemnity agreements. And then there are all of the same issues that all businesses need help with.

Q: What are some key pieces of advice you would have for businesses operating in this industry?

Sheena: There are a few issues I would highlight. Due to the peculiarities of the life sciences industry it is vitally important that our clients have assurances that suppliers will comply with our clients’ standards. The last thing a client needs is for their courier company to say they “didn’t know” that a product had to be stored at less than 4 degrees Celsius, resulting in an entire batch being unsuitable for sale. We recommend that our clients have a quality agreement with their suppliers. This agreement must set out a clear procedure for notification of product requirements (whether these relate to temperature, quality levels or any other issue that may arise). It would also set out the procedure to be followed if the standards are not met, which aids in ensuring that unsafe products do not make it to market. Our clients are usually well aware that the ACL (Australian Consumer Law) imposes certain protections when goods or services are supplied to consumers. What is less-well known is that these protections can often be passed up the supply chain, so a manufacturer/wholesaler can be held responsible if their products do not meet the relevant standards. This can be of particular concern for companies who import goods, as they will often be the one liable (both under the ACL and as sponsor for any goods listed on the ARTG), even though the products are being manufactured by someone else. It is vitally important

Sheena Joshi

to ensure that our clients have appropriate protections in their distribution agreements to ensure that their supplier indemnifies them for any faults. Particular care is also required regarding warranties, as these are often superseded by the provisions of the ACL.

Q: You mentioned earlier that life sciences clients share many of the same legal problems as other businesses. Can you think of some examples of this?

Sheena: Sure! One good example is employment law. Our clients will often have sales or managerial staff with a wealth of information that would be very helpful to their competitors if those employees chose to jump ship. It is not uncommon for a poorly drafted restraint clause to be insufficient to stop ex-employees seeking to join a competitor, so it is important to have these reviewed regularly. We also help with HR issues, and all property related matters, such as commercial leasing.Given the highly sensitive nature of medical information, privacy issues are of great importance in the life sciences industry. Since 2013 certain organisations (including those with turnover of more than $3m, or those who provide health services and keep health records) have been required to comply with the Australian Privacy Principles, including the requirement that they have privacy procedures in place and a publicly available privacy policy. There are also provisions regarding when and how personal information can be collected, used and disclosed, which are more stringent when applied to medical information.

▣ Sheena Joshisjoshi@avlawyers.com.auTelephone+ 61 2 8448 9852

Life Sciences & Health Care cont.

A lot goes on behind the scenes to make the delivery of quality legal services possible. We meet some of the people who

“make it happen”and ask them what motivates them, and what they love about working at Atkinson Vinden.

Julie

Role: Estates Paralegal

AV is a very friendly workplace. I enjoy succeeding in doing things which help complete an estate matter. I like helping to make a matter “roll”. It is particularly special in my role to be able to organise large payments to beneficiaries – most are extremely grateful.

Jenny

Role: Receptionist and Database Administrator

I meet an incredible range of people with all sorts of different legal problems. I enjoy the staff relationships, the location of AV is very convenient, and it is a very pleasant work environment. Chatswood has a real “buzz” too. I like being the front person when visitors come to our reception, and I want them to feel instantly that they have contacted a professional company

Sharron

Role: Credit Control

I like dealing with clients – the humane side of the job. It is a very sociable role as I get to deal with most of our staff as well as many of our clients. I must admit I also like the cut and thrust of the financial side of things; it is great to see the collections rolling in!

Kristyn

Role: Litigation Law Clerk

I love the people most of all. I enjoy being involved in a court hearing, making that happen by helping with the preparation of documents, and then seeing the results when the client is successful in court. I enjoy learning new things all of the time.

Claudine

Role: Accounts Manager

I like the variety of the role – all of the aspects of managing the firm’s finances. I enjoy the fast-paced pressure of making sure everything is in order, in accordance with legal regulations governing the legal industry. It is great completing projects, especially the end of trust year audit!

Kathy

Role: Office Manager

One aspect to my job that I enjoy is that I never know what the day will bring. I love the people here – there are some very funny individuals and lighter moments!

Carmel

Role: Estates Paralegal, Safe Custody Officer

I love the variety in my work, and the many changes each day. Words I would use to describe my colleagues at AV include, “fabulous”, “terrific” and “great”. I feel good when I am up to date with my work, and I enjoy helping clients who have enquiries about the documents we hold for them in safe custody. Often they will contact me because their partner has passed away – it is very sad, but I am able to provide practical help to them.

Jessie

Role: Administrative Assistant

Every day is different – there is lots of diversity. I love all of the people I work with. Jill and Sue are my “office mums” and keep me on schedule!

Suzanne

Role: Licenced Conveyancer

I have been here 8 years now, and I love it. I especially enjoy the people – the banter and friendship, the positive atmosphere. I enjoy very positive client relationships. There is always great excitement for a client who is buying a new house, and I find it very gratifying when those clients come back to me the next time they are buying or selling a property. I also enjoy the long-term friendships which grow with retirement village operators – you get to know each other working on the same village over the years.

Lauren

Role: PA to Senior Partner

A good day is being busy from start to finish. I enjoy the relationships at work. The staff at AV are very helpful, smart and impressive in their wide knowledge of the law. It is great having contact with clients, most are friendly and good to deal with.

“make it happen” cont.

Contracts• Confidentiality, distribution & supply • Partnerships and joint ventures • Shareholders and unit-holders • Building and major projects• Buy/sell and exit agreements

Start up businesses• Sale & Purchase of Businesses • Due diligence and contract negotiations• Structuring of entities, corporate governance

and liabilities• Lease of premises and local government

issues• Financial assistance and GST advice

Business Succession Planning• Advising on and effecting structure for

succession to related and third parties• Integration of insurance and other structures

for exit planning

Information & Communication Technology • Software licensing, maintenance and sale

agreements and web-hosting agreements • Registration of domain names and website

design and development contracts • E-commerce including drafting terms of trade

and disclaimers and electronic security

Intellectual Property• Trademarks, designs and copyright• Licensing agreements• Enforcement through letters of demand and

injunctions

Franchising• Establishment of master franchises• Franchise and disclosure documents• Due diligence, negotiations and structuring

of entities• Lease of premises and loan and finance

structuring

Life Sciences & Healthcare• Distribution agreements and indemnities• Therapeutic Goods Administration

compliance• Terms and conditions • Licensing• Intellectual property• Sale and purchase of business• Mergers and acquisitions • Privacy• Biotechnology• Registration, professional standards and

bioethics• Employment and Award obligations

Mediation and Alternative Dispute Resolution (ADR)• Letters of demand and skilled negotiations• Mediation hosting and retaining retired

judges to assist• Informal settlement conferences

Building Disputes• Home owners warranty insurance• Security of Payments Act• Statutory warranties• NCAT representation• Strata and owners corporation disputes

Court Action• Directors disputes and other company-related

Issues• Contract enforcement, injunctions and

damages claims• Professional negligence and defamation• Trade practices and infringement of IP• Civil search orders and ICT litigation• Debt collection including statutory demands,

bankruptcy and winding up applications

Employment Law • Contracts of employment, enterprise

agreements and Awards• Company policies including bullying and

discrimination• Work Health & Safety compliance • Workplace investigations, termination,

redundancy and unfair dismissal• Restraint of trade and confidentiality• Representation in the Fair Work Commission• Workplace fraud

Family Law • Separation and divorce • Parenting matters and child support • Property matters and maintenance • Preparation of settlement documents after

reaching agreement • Bringing proceedings in the Family Court and

the Federal Circuit Court• Business assets in the context of family law

property settlements• Binding financial agreements

Commercial Properties• Sale, purchase and leasing of industrial,

commercial & retail properties • Development management agreements• Subdivision and property development• Due diligence and structuring of entities • Refinancing advice and GST, stamp duty and

tax implications• Local government advice and appeals to the

Land and Environment Court

Real Estate Agency Law• Rent roll sale and purchase • Real estate agency sale and purchase and

share sale agreements • Disputes including commission claims,

retention claims, lost management claims, employment and restraints of trade

Residential Properties• Domestic conveyancing and purchases off

the plan• Strata title and body corporate issues• Put and call options• Property sales syndicates• Off the Plan Sales for large and small property

developers

It takes time to build trust with professional advisers, and that trust cannot be manufactured – it grows through demonstrated competence and commitment to long-term relationships. An incredibly rewarding aspect of our firm’s client relationships is acting for the children of longstanding clients. We also enjoy opportunities to extend our professional contact with clients by finding new ways to work together. What may start off with one discrete enquiry may end up a long and rewarding mutual association over many years.

You may have come to us needing help with your business – company structuring, issues between business owners, leasing, employment/HR advice, or a dispute with a supplier. Or you may have first needed our help with a personal matter, perhaps buying or selling a property, asset protection and estate planning, or guidance in the face of marriage breakdown.

If clients have been pleased with our support in one area, we hope over time that they will engage our services for other needs as well, whether that be for other family needs, or issues in business. This is a summary of the many ways we can work together with you.

AV ServicesAtkinson Vinden Lawyers has all of your bases covered

Commercial

Litigation

Property

Retirement Villages & Aged Care• Contracts and disclosure statements• New projects, due diligence, development

management agreements• Compliance with Retirement Villages Act and

Aged Care Act• Conflict management and Award obligations• Acting for residents

Planning for the Future• Wills, codicils and testamentary trusts• Guardianship for you and your children• Powers of attorney• Retirement planning• Working with your accountant and financial

planner

Probate and Administration• Obtaining probate of a will• Helping you to collect and distribute estate

assets• Dealing with difficult beneficiaries• Intestate estates – where there is no will

Ownership Structure• Operational and governance issues involving

trusts• Self-Managed Super Funds• Asset protection including potential future

claims

Will Disputes and Conflict• Claims for provision against estates (Family

Provision)• Disputes over testamentary capacity • Rectification of errors in wills• Arguments between executors

Sheena

Joshi

Senior Partner

:

sjoshi@avlawyers.com.a

u

Janelle Boutros

Associate : jboutros@avlawyers.com.au

Commercial, Life Sciences & Healthcare

Guy

Vinden

Senior Consultant : gvinden@avlawyers.com.au

Sue Falkner

Senior Associate : sfalkner@avlawyers.com.au

Retirement

Villages

&

Aged

Care

Property

Anne Goodrick

Senior

Associate

&

Accredited

Property

Law

Specialist

:

agoodrick@avlawyers.com.au

Wills,

Trusts

and

Retirement

Planning

Estate Disputes

Rod

Berry

Managing P

artner  :  rberry@avlawyers.com.au

Tom Howard

Associate

:

thoward@avlawyers.com.au

Annabel

Murray

Associate & Accredited Family Law Specialist : amurray@avlawyers.com.au

Litigation and Negotiation

Employment

Law

Family Law

Caitlin

Watson

Associate

:

cwatson@avlawyers.com.au

Estate Planning

Phone + 61 2 9411 4466

avlawyers.com.auavemploymentlaw.com.au

avfamilylaw.com.au

Lawyers

Business Advisory Team

AV Services cont.

Atkinson Vinden P/L

Level 8, 10 Help StreetChatswood NSW 2067

DX   29582 Chatswood

Mail PO Box 450  Chatswood 2057

Tel  + 61 2 9411 4466Fax  + 61 2 9412 3657

email@avlawyers.com.auwww.avlawyers.com.auwww.avemploymentlaw.com.auwww.avfamilylaw.com.au