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DEBT COLLECTOR OR DEBT COLLECTION LAWYER? WHICH IS BEST FOR DEBT COLLECTION?

Debt collection is difficult at the best of times. To make debt collection easier, it is natural to turn to debt collectors or debt collection lawyers to assist. But who is best placed to deal with your specific situation? To answer this, it is worth thinking about the nature of the relationship you have with the debtor.

The debt collection relationship between debtor and creditor:

Debt collection can arise in all manner of situations. It can happen when a trusted and valuable commercial associate falls on hard times, when an opportunistic borrower thinks they can get away with not paying their bills, or for countless other reasons. The nature of the debtor/creditor relationship can be integral to the approach. [...]  READ MORE →

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Protecting Assets and Preserving Wealth through Discretionary Trusts

What is a Trust?

A Trust is formed when a person or entity (the Trustee) holds assets for the benefit of another person or class of persons or entities (the Beneficiaries). Strict legal and fiduciary obligations are imposed upon the Trustee in order to protect the Beneficiaries’ interest in the trust assets. Under these obligations, a Trustee must act:

  1. in good faith, honestly and not profit from the Trust (as Trustee);
  2. with due care, skill and diligence and avoid conflicts of interest;
  3. in the best interests of the Beneficiaries;
  4. to preserve the Trust property;
  5. in person and not delegate their duty to another person; and
  6. transparently and account and provide information to the Beneficiaries, upon request.

The Trustee’s failure to comply with its fiduciary obligations can result in the Beneficiaries commencing legal proceedings against the Trustee in respect of such breach. [...]  READ MORE →

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How can property, of a bankrupt, not be “property of the bankrupt”?

By Jacob Reardon, a solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

One of the most entrenched distinctions between the personal and corporate insolvency regimes in Australia is the manner in which the property of the insolvent individual is treated. In a liquidation, for example, the title to the company’s property remains with the company upon the appointment of a liquidator, who is only an agent for the company. However, the position is fundamentally different under the Bankruptcy Act 1966 (Cth) (“the Act”). [...]  READ MORE →

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Creditors Statutory Demands

Creditors Statutory Demands – Short Cut to Cash or Catastrophe?

Creditors Statutory Demands are a relatively cheap but powerful tool which can produce significant results quickly and efficiently, saving months on a long drawn out debt recovery process. However, with great power comes significant risk, and creditors need to understand when and how best to make use of this short cut, without getting lost in a labyrinth of litigation.

What is a Statutory Demand?

A statutory demand is a formal prescribed notice issued to a debtor company by a creditor pursuant to section 459E of the Corporations Act 2001 (Cth) (“the Act”). The demand is for the debtor to pay the outstanding debts within the statutory period of 21 days, or be presumed to be insolvent and face the risk of a winding up application being filed against the debtor company. Issuing a statutory demand however is subject to certain criteria stipulated in the Act. Section 459E states that a statutory demand can be issued to a person in respect of one or more debts, totalling the statutory minimum of $2,000 and must: [...]  READ MORE →

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Superannuation Death Benefit Considerations in the Estate Plan

This Article has been adapted from a presentation that the author made for the Law Society of NSW in their Elder Law, wills and Probate: One day Intensive on 12 March 2024

Introduction

Since the introduction of compulsory superannuation contributions in 1992 the superannuation industry has grown to become a $3.5 trillion industry as at June 2023.  Of that total amount approximately $884 billion are held in self-managed superannuation funds (SMSFs).

For any estate planning lawyer it is crucial to consider as part of the estate plan what will happen to a client’s superannuation death benefit upon their passing. [...]  READ MORE →

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Writing your own Will and Will Disputes

Will Disputes – A Cautionary Tale Against Trying to Write Your Own Will:

Etherton v Mitchelmore [2024] NSWSC 170

Caterina Felice Bohen (‘the Deceased’) died in August 2021. She was survived by two adult daughters and five grandchildren. In a will dated 10 August 2016, the Deceased purported to leave her grandchildren most of her estate. At the end of 2020, the Deceased handwrote a note on the back of a used envelope that read ‘I, Caterina Felice Bohen wish to leave my house to Robin Etherton of Roseville, as he was the only one who ever helped me when I needed help’. She then gave this to Robin Etherton without retaining a copy. The central issue in this case was whether this document could be accepted as one that contained the Deceased’s testamentary intentions. [...]  READ MORE →

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The importance of making a will as a Parent.

You can’t choose your family: sibling rivalry over adult son’s claim for further provision, highlights the importance of making a will as a Parent.

A son’s application for a late inheritance claim was recently turned down by a Queensland court. After more than two decades of rent-free living in one of his father’s residences, the son requested further provision from the estate. This case demonstrates the challenges that may occur when a parent dies without leaving a will and provides important guidance for anyone hoping to seek further provision from the estate without the necessary supporting evidence.

The Case: Day v Peake [2023] QDC 178

Facts:

The applicant, Lloyd Day, is the adult son of the deceased, Desmond Gunston Day, who died intestate (without a will) at 95 years old on July 25, 2020. Desmond was married twice and fathered seven children, six of them survived him.  The eldest child, Rosemary Peake, was granted letters of administration (a court order which allows the administrator to distribute assets and manage the estate) on August 2, 2021. Scott Day, initially applied for further provision from the estate on October 19, 2021, with Lloyd joining the application on March 30, 2022. Scott and Lloyd (the applicants) lived in the two properties namely 51 and 55 Sutherland Street Calliope, that comprised the entire estate, valued at approximately $440,000. [...]  READ MORE →

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Can a Will signed on an iPad be admitted to Probate?

This was the key issue of determination in a recent South Australia Supreme Court decision.

In Re Estate of Elizabeth Seabrooke (‘deceased’) [2023] SASC 122 (‘Seabrooke’), Elizabeth Seabrooke (‘the deceased’) died on 24 April 2022. Prior to her death, she executed a Will on an iPad, signed with an iPad pencil and executed in the presence of two witnesses who did the same. The deceased then scanned the electronic Will and sent it to herself.

The deceased named her daughter Natalie Beresford as executor (“the executor”) of the Will. On application to have the will admitted to probate, the executor sought to admit a printed copy of the scanned electronic will as the last will and testament of the deceased. The original electronic will could not be located on the iPad on which it was prepared and signed, however a copy was saved on a USB which had been lodged to the Registry. The matter was referred from the Registrar to the Supreme Court for determination. There was no argument that the Will did not contain  the necessities required such as a clause revoking all prior wills and codicils as well as a named executor and beneficiaries of the deceased’s property and assets. What was left for the Court to determine was whether a copy of the ‘document’ executed as a last will and testament should be admitted to probate. [...]  READ MORE →

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When there’s a will, there’s a way!

Aveyard v Selwood; Philpott v Selwood; Riley v Selwood [2024] NSWSC 29

Where there’s a will, there’s a way

A recent Supreme Court Decision has demonstrated that when there is a will that does not allow for the “proper maintenance, education or advancement in life” of eligible persons ie family members, the Court will make an order for provision out of the estate of the deceased to do so.

This case involved three applications made for provisions under s 59 of the Succession Act, submitted by late John Raymond Selwood’s (the Deceased) daughters regarding the Deceased’s will dated 23 March 1984.

The Deceased’s will left his estate as follows: [...]  READ MORE →

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NCAT affirms Disciplinary Decision to Disqualify Certifier from Registration for 10 years.

Case Review: Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4

The NSW Civil and Administrative Tribunal (NCAT) has recently affirmed a decision of the Commissioner for Fair Trading (Commissioner) to cancel a certifier’s registration and disqualify him from registration for 10 years. Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4 (Orfali Case) is a case that exemplifies the necessity for certifiers to ensure they comply with conditions of their certificates of registration.

Background

The Applicant, Mr Orfali, applied for an NCAT review of the Commissioner’s decision to cancel his registration as a registered certifier and disqualify him from registration for a period of 10 years. [...]  READ MORE →

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The Trouble with the Bank of Mum & Dad

How is the transaction characterised – is it a “loan” or a “gift”?

In Australia even if a parent thinks a transaction is a “loan”, unless there is evidence (ideally by being documented) there is a presumption that the transaction was a gift. Therefore if the parent actually intends the money to be repaid at some point in time it should be documented in a relevant loan agreement or deed.

Documentation of the transaction is essential

Documentation of the arrangement is also important for a number of other reasons which include the following:

  • Sometimes these arrangements may be in place for years or even decades and it is important to clearly set out what the intentions of the parties are so as to minimise the chance of disagreements down the track.
  • Depending upon the terms and the circumstances, a properly documented loan agreement or deed may be able to provide some protection should the debtor become bankrupt or divorced.
  • Documentation can be critical in confirming the arrangements regarding the loan in the event that a parent becomes incapacitated or passes away.
  • A properly documented arrangement can also allow for appropriate security measures being put in place such as a registered mortgage or at the very least a caveat over real property.

Consideration of how these arrangements will impact on your estate planning

If you have provided “loans” or “gifts” to children and these benefits have not been equal between the children during your lifetime you should consider whether your will needs an equalisation clause so that all your children will ultimately end up with substantially the same benefits during your lifetime and as part of your estate. [...]  READ MORE →

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The Bank of Mum & Dad

With interest rate pressures and strong property prices the path to become a first home owner can be difficult to achieve without family support.

Parents are more than ever needed to financially help their child to acquire the first home.

But where their child has a partner, parents are likely to be looking for some certainty – either that in time they can have their advance returned to them; or if their child’s relationship encounters any problems, that their contribution is repayable in full. Family Law can create troubles for the bank of mum and dad. [...]  READ MORE →