Spring 2012 Newsletter

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McLaughlins Newsletter Spring 2012

FROM OUR COMMERCIAL DEPARTMENT

PRACTICE AREAS Commercial / Property Insolvency Family Law Wills & Estates Commercial Litigation & Dispute Resolution Migration

Contact us: (07) 5591 5099 [email protected] Southport Office Cnr. Hicks & Davenport Streets, Southport P.O. Box 2067 Southport Qld 4215 Burleigh Heads Office 2nd Level, McDonald House 37 Connor Street Burleigh Heads Mail Box 4 Burleigh Heads Qld 4220

Contents 1. “Ian Says” 2. From our Commercial

Department. 3. From our Litigation

Department. 4. From our Family Law

Department 5. Community Involvement 6. Spring Recipe

We are approaching the home stretch of what has been a very busy and productive 2012

year for McLaughlins and its clients. This has been a year of growth for the firm

and we welcome various new members to the team including Kristy Reynolds, Dixon Soh, Jimilla Macaulay, Varsana Streisand, Dianne Ball, Kathy Nelson, Mary-Joy Grima, and Helen Firns. Rhys Thompson joined us on a project basis and we will be disappointed to see him leave at the end of this year to continue his plans to travel and broaden his career experiences overseas.

We are continuing to grow our firm, and prospective employees can check our positions vacant on the careers page on our website. Our team of lawyers have been busy

supporting our clients the Good Times Pub Group in the purchase of 7 pubs

around South-East Queensland in the last 12 months.

The firm is also utilising its Commercial and Property Law expertise in other transactions

such as acting for the purchasers of the Palazzo Versace Hotel on the Gold Coast as well as other large commercial property transactions on the Gold Coast and Brisbane. This has also been a year that has seen the older lawyers in our firm embrace the age of social media. We have implemented changes to our website with links to our firms

Facebook Page. Social media is a natural complement to the firm’s active networking strategies and ongoing community involvement. We wish everyone a safe and prosperous forthcoming festive season

Ian Kennedy – Managing Partner

Buying (or Building) a New First Home?

For those who find themselves in the position of buying a first home off-the-plan or are building, this seems like a golden once-in-a-

lifetime opportunity. While the market still hasn’t regained its strength, property values are fairly reasonable and the interest rates are

low – people who are entering the property market for the first time are also taking advantage of the First Home Owner’s Construction Grant (‘FHOCG’). This initiative of the Newman Government has

focused on encouraging building and construction in Queensland.

The Grant has the following characteristics: 1. Grant increased from $7,000 to

$15,000 and is capped at properties

valued above $750,000

2. It applies to contracts to buy a newly

built home, or contracts to build

after 12 September 2012 (owner-

builders must lay foundation after

this date)

3. This can include renovations if they

are ‘substantially renovated’

Continued over page….

The Gold Coast's oldest law firm - a history of success



Having A Dickens Of A Time?

CONTINUED FROM OUR COMMERCIAL DEPARTMENT

Bleak House by Charles Dickens is a classic tale of a family fighting over a will. It takes place over three generations and I won’t spoil the ending for you, but it is definitely worth

the read. It’s probably more heart wrenching because it is so much more believable than his ghosts of Christmas’ past and his orphaned boy who wants more porridge!

Estate planning is worth taking the time to do, and to do properly. This is not so just because you will have the ease

of mind that comes with knowing that your wishes are clearly outlined, it is also because with appropriate planning you can minimise some potential for quarrelling about what you have left behind.

While it is impossible to plan for every possibility, prior to drafting a new will or updating your current one, putting pen

to paper and making a list can help to clear up your concerns and can assist us to create a document that reflects your wishes, taking into account your unique financial situation. Think about the following:

1. What are your assets and liabilities? Have you

moved house, purchased investment properties,

bought or sold shares, cashed in your

superannuation, refinanced or co-signed any loans?

2. Are there new people in your life? New children,

grandchildren, step children, adopted children,

dependants that you have taken on, spouse,

partner, or friends?

3. Are there people who are gone?

People who you have lost touch with, people who

have died, or divorced?

4. If you have a will – do you understand what it says,

does it reflect what you want done now, are there

people who you think might want a share in your

estate that are not in your will now?

5. Do you know what your executors/trustees will be

required to do? Are they people who are generally

reliable, good with details and good at getting tasks

done?

6. Do you own a company, are you a director, are you

winding one down, are the homes or cars owned by

a Trust, what happens to the company, the Trust

and the property when you are gone?

7. What do you own that is in your own name, and

what do you own with others, and how is the

ownership divided?

8. If you have a will – did you sign it, was it witnessed,

is it dated, is it somewhere safe, were your

witnesses people who are actually named in your

will?

9. Do you have questions? Write them down and call

us to help.

As you can see, there is a lot to consider – and this list is not exhaustive Hopefully, your executors and beneficiaries will have anything but the Dickens of a Time.

Continued from first page….

The earlier ‘First Home Owner Grant’ of $7,000 still applies for purchasers of established homes who signed a contract before 11 October 2012. Requirements: Both Grants still include the requirement of living in the property within one year of becoming the registered owner, and then living continuously in the property for six months. Process: The Grants are administered by the Office of State Revenue (‘OSR’), and can be applied directly from OSR or through the bank if you are getting finance for your

purchase. Bonus: Along with the Grants, remember that there are

concessions on the payment of stamp duty that the conveyancer or lawyer handling your purchase can obtain

from OSR depending on the value of your property, the type of property and whether it is principal place of residence, first home or vacant land.

Purchasing a home is usually the largest purchase most people ever make in their lives, so make sure you take the

time to do your research: check the information on the OSR website regarding Grants and stamp duty, speak to an experienced property lawyer or conveyancer and your financier before you sign any contracts (have the contract reviewed by a McLaughlins Lawyer before you sign it!) and remind yourself that you might be purchasing a home for

less money than you would have four years ago!



CONTINUED FROM OUR COMMERCIAL DEPARTMENT

FROM OUR LITIGATION DEPARTMENT

The Role of Social Media in Advertising

Social media can be a useful marketing tool for any business. The benefits of social media such as Facebook and Twitter as

an advertising tool, in comparison to traditional mediums are clear. Social media provides businesses with a free, instantaneous and wide reaching advertising tool. However, businesses are urged to exercise caution when using social media. Recent decisions in the Federal Court of Australia indicate that businesses may be held liable for third party comments posted on their Facebook or Twitter pages.

Under the Australian Consumer Law (the “ACL”), corporations are prohibited from engaging in certain types of conduct in their relations with consumers.

There is a broad provision in the ACL which prohibits conduct by a corporation that is misleading or deceptive, or would be likely to mislead or deceive consumers. It is irrelevant whether a business intends to mislead or deceive consumers; rather, it is the effect of the conduct of the business on the consumer. Also, corporations are prohibited from making false claims about the following:

• the quality, style, model or history of a good or

• the sponsorship, performance characteristics,

accessories, benefits and uses of goods and services

• the availability of repair facilities or spare parts

• the place of origin of a good (for example, where it

was made or assembled)

• a buyer's need for the goods or services

• any exclusions on the goods and services.

A breach of the ACL can be punished by monetary fines of up to $1.1 million for corporations and $220,000 for individuals, damages and injunctions.

The Australian Competition and Consumer Commission (the “ACCC”), which is the consumer watchdog responsible for enforcement of the ACL, appears to be cracking down on

such infringements by businesses through use of social media. A recent example of a business falling foul of the ACL

through third party comments on its social networking sites is the Federal Court decision in the Allergy Pathway case. In 2009, Allergy Pathway was found to have breached the ACL

by falsely representing that it could test for allergens and safely cure and treat all allergies.

Continued over page….

Transferring A Registered Business Name

From 28 May 2012, the National Business Names Register came into effect which is administered by the Australian Securities and Investment Commission (ASIC). Prior to the national register being implemented, each State was responsible for maintaining its own register and the necessary processes to transfer a registered business name upon the sale of a business. The previous Queensland process for any business owner

seeking to sell their business which included as a part of the sale the transfer of the registered business name, was simply for the vendor to hand to the buyer an executed

Form 4 Transfer of Business Name at settlement. The Buyer would then submit the form to the Department of Fair Trading and the ownership of the registered business name would be transferred. The new process under the ASIC register is far morecomplicated and time consuming with the following steps required:

1. Obtain an ASIC key which requires the vendor to

sign up for an ASIC Connect Account through the

ASIC website. Once the account has been

established, ASIC will mail the ASIC Key to the

address for service of documents on record;

2. Complete and lodge the Maintenance Smart Form

online;

3. ASIC will email the ‘Consent to Transfer Number’ to

the email address on record; and

4. The ‘Consent to Transfer Number’ is provided to the

buyer at settlement.

If you are thinking of selling your business, undertaking the necessary steps to transfer the registered business name must be addressed early in the matter to ensure that you are in a position to transfer the name at settlement. Failure by a vendor to be in such a position could result in

settlement of the matter being delayed significantly.



FROM OUR FAMILY LAW DEPARTMENT

Collaborative Law

Continued from previous page….

As a result, Allergy Pathway gave an undertaking to the Court that it would not publish any material making such representations. The ACCC subsequently took action against Allergy Pathway in 2011 for breaches of the undertaking given by Allergy Pathway resulting from testimonials posted by clients on the Allergy Pathway Facebook wall and Twitter page. The Court found that although Allergy Pathway was not responsible for

the initial publication of the testimonials (as these were written and posted by third party clients) it “accepted responsibility for the publications when it knew of the publications and decided not to remove them. Hence it became the publisher of the testimonials.” Allergy Pathway was fined $15,000 and ordered to pay the legal costs of the ACCC on an indemnity basis, as well as being

required to publish corrective advertising in its clinics, on its websites and by letter to be distributed to all clients.

Chairman Graeme Samuel has made the ACCC’s stance on this issue abundantly clear: “Many corporations now use Facebook Fan pages and Twitter accounts to promote their businesses. This outcome confirms that any business that decides to leave public testimonials or other comments on their Facebook and Twitter pages will be held responsible if they are false, misleading or deceptive.”

Businesses are advised to put a system in place to regularly review all third party comments posted on their Facebook or

Twitter pages and remove any misleading or offensive comments promptly.

Our Family Law Partner, Sophie Pearson, was one of the first trained collaborative professionals, having completed her training in 2006 at the time Queensland Collaborative Law was commenced. Collaborative Law is a term reasonably new to the Australian “Divorce” process, but is gaining momentum in Australia as one of the most respected ways to separate. What is Collaborative Law?

The values of Collaborative Law are integrity, human relationships and connections, and trust. Collaborative Law focuses on resolution and minimises conflict where spouses

and former partners, their collaboratively trained lawyers, and other collaborative professionals working with the family such as, psychologists, financial advisers, and accountants, agree to resolve all issues of their case without the intervention of the Court. The collaborative lawyers and the collaborative team work together with you to shape an agreement making considered decisions for the benefit of the family as a whole. How does Collaborative Law Work? Both parties have an initial meeting with their respective lawyers to obtain advice regarding the Collaborative Law process, and to identify the issues that are important to them.

The parties and their lawyers then come together in a four way meeting which includes you, your spouse or partner, and each of your lawyers to reach a settlement.

There are often a series of four way meetings to reach the resolution where all issues are discussed in an open and non-confrontational manner. Trained collaborative lawyers support the negotiations by providing the parties with not only the structure to facilitate the agreement, but also the benefit of their skills, advice and support. With this assistance, in an atmosphere of openness and honesty, couples can communicate their respective needs and work towards securing their future.

Is my Case Suitable for Collaborative Law?

Not all matters are suitable for Collaborative Law.

Collaborative Law is an option for you and your spouse or partner if you:

• Wish to spare your children from the emotional damage litigation can cause

• Believe it is important to create a healthy and

more holistic solution for your family. What are the Advantages of Collaborative Law?

• You keep control of the process, whether negotiating property and/or parenting matters

• You avoid going to court

• Your children(s) needs are given priority • The solution fits you and your family • You are focused on settlement rather than being

focused on going to war at court



Community Involvement

The Partners of McLaughlins are proud of the achievements of all our staff this year. As well as professional achievements for our staff, we have also been busy in the community. Below are examples of our community involvement along with some of our recent blogs from our website. To view ongoing news items and general updates, visit the News page on our website or visit our Facebook page.

HEAR AND SAY CENTRE UPDATE

In our Winter 2012 Newsletter, we announced that McLaughlins Lawyers, in agreement with the executors of the Estate of the late Janina Marcus, selected the Hear and Say Centre to benefit from the generous legacy of Mrs Marcus. McLaughlins

Lawyers arranged to sponsor Callan, a deaf baby boy who will be given the chance to learn to listen and speak by receiving intensive therapy with the Hear and Say Centre.

Callan is now 1 year 11 months old and we have received an update from the Hear and Say Centre stating that he has recently reached numerous goals including increasing his vocabulary, combining words to make a phrase, identifying objects in the middle of a sentence and comprehending related directions. Over the next six months, Callan’s goal is to target the sequencing of two directions using objects and continue to have fun while participating at Hear

and Say Centre playgroup. Callan is continuing to progress extremely well and with the support from his family and the sponsorship that has been provided to him, it is hopeful that he continues to achieve future goals.

Should you wish to learn more about providing for a charity in your Will, please contact Scott Pearson.

COMBINED NETWORKING EVENT

The Combined Networking Event, co-hosted by McLaughlins Lawyers, was a great success and over $1,500 was raised for the Pyjama Foundation.

Photos by Bradkay Photographix - www,bradkay.com

McLAUGHLIN’S BLOG

Home buyers to benefit from PAMDA reforms

Queenslanders will save time and money when buying or selling a property after the Government announced changes to the Property and Motor Dealers Act…..more



Spring Recipe

Chocolate Praline Cake

Brought to you by the Commercial Department

Ingredients 160ml Pouring Cream 40ml Milk 200gm Dark Chocolate (61% cocoa solids), finely chopped Chocolate pastry 200gm Plain Flour 60gm Pure Icing Sugar, sifted 30gm Dutch-process Cocoa 100gm Cold Butter, coarsely chopped 2 Egg Yolks

Method

1. For chocolate pastry, process flour, icing sugar and cocoa in a food processor until combined. Add butter, process until mixture resembles fine crumbs, then add egg yolks, process to combine. Turn onto a lightly floured work surface and bring pastry together with the heel of your hand. Wrap in plastic wrap, refrigerate for 1 hour to rest.

2. Preheat oven to 180C. Roll out pastry on a lightly floured surface to 3mm thick and line a 28cm-diameter loose-bottomed tart tin, trimming edges. Refrigerate for 1 hour, then blind bake for 8-10 minutes, remove paper and weights and bake until dry and crisp (8-10 minutes).

3. Meanwhile, for praline filling, spread hazelnuts on an oiled baking tray, set aside. Combine sugar and 60ml water in a small saucepan, stir over medium-high heat until sugar dissolves. Bring to the boil, cook until dark caramel in colour (4-5 minutes), pour over nuts. Stand until cool and set (8-10 minutes), process in a food processor until finely ground, set aside. Bring cream to the simmer in a small saucepan over medium heat, add chocolate, stir until smooth, remove from heat, stir in two-thirds of praline mixture (reserve remaining to serve). Spoon into pastry case, smooth top, refrigerate until just set (1½-2 hours).

4. Combine cream and milk in a small saucepan, bring to the simmer over medium-high heat. Add dark chocolate, remove from heat, stir until smooth. Spread over tart, refrigerate until just set (45 minutes-1 hour). Cut into wedges with a hot knife and serve immediately scattered with reserved praline.

Enjoy!

Milk chocolate praline filling 150gm Hazelnuts, roasted and skins removed 175gm Raw Caster Sugar 300ml Pouring Cream 400gm Milk Chocolate, finely chopped

Spring 2012 Newsletter

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