The easements are rights attached to the land, to use other lands in a particular way, that’s somebody else’s land it does not involve. The taking of natural resources or produce from the land, for example, timber or other vegetation or soil.
It may, however, prevent the owner of the other land from using that their land in a particular way. So an example of the easement is, where one owner allows another owner to have access to their land, that land advantaged by the easements called the benefited blot or the dominant tenement the land over. Which the easement is granted is called the burdened lot or the Serbian tenement. The benefit of an easement runs with the land runs with a benefit a lot that is it passes from one owner of the benefited land to the next simply the burden of an easement runs with the burdened lot. So the owner, of the burdened lot is continually burdened with that easement. The burden of the easement remains unless it’s surrendered or extinguished. You can only be surrendered by the person, who has a benefit of it and otherwise, extinguished in other ways the exception to this is in the case of an easement in gross where there is burdened a lot only to serve for the purposes of local government or local means instrumentalities. An example of an easement in gross is – where an owner allows the local authority to put drainage pipes under their land, so going ahead that’s been helpful for understanding some of the fundamentals of easements.
But what do employers need to know, and probably don’t?
A useful statement from a senior Judge of the employment court in a mediation conference was where he told both lawyers that “it is all about conducting a proper assessment of the risks and making sure your clients understand them”. When considering dismissing an employee, it is probably timely to ask yourself the question – As an employer have you considered any and all risks that termination of an employee may bring upon you?
As an employer why should you avoid unfair dismissal claims and how?
An unlawful dismissal can cost an employer in terms of time, money, and reputation. Claims can be multiple so are the remedy(s). To properly dismiss and to minimize your penalty risks, simply ask these questions from yourself, although the list is not exhaustive:
Is termination the only way to address the employee’s conduct?
Is this in accordance with the termination clause in the employee’s agreement?
As a decision-maker, have you directed your mind correctly to the reason for termination and the consequences of your decision; and
As a reasonable person in the employee’s shoes, do you consider the dismissal fair and reasonable?
What if the termination is the right call?
Whether it is a simple termination or summary dismissal, always double-check your facts, notes, and the history that led the situation to become what it is before you. At best, if the termination call is the right one, and unless the situation is not serious to warrant summary unfair dismissal, make sure that:
You are not overreacting to a matter that may deserve a lesser action than termination;
You have proper procedures in place to investigate the issue that gave rise to the termination and before terminating anyone;
You give the employee a chance to narrate their side of the story within a reasonable time and accord them with the right to have support persons with them throughout the process and when you are investigating the matter before you;
To allow a fair investigation, you provide the employee with paid leave (This may sound costly, but the result will generally be to your benefit in the long run); and
You only terminate if the agreement allows you to do so, and ensure that you are correctly interpreting your termination clause.
What if you are unsure that termination is the right call or not?
The employer’s quagmire would be when the employer is unsure of dismissing an employee or not. Obviously, it is a natural expectation that as an employer you wish to save face with other employees, and accordingly do not want to take the wrong step. It is, therefore, always better to seek qualified employment law advice if you are unsure whether to fire or keep an employee.
Can you fire your employee when the relationship of trust and confidence is broken?
The answer may be drawn from a law maxim; “lex neminem cogit ad vana seu inutilia peragenda” which means; the law does not compel one to do useless things.
That is, if you and the employee cannot work side-by-side and you have valid reasons, providing such a term is stipulated in the employment agreement, you may terminate the employee. To do so, however, you need to ensure you have valid supporting documents as proof that the relationship of trust and confidence between you the employee, was broken such that the relationship was unsustainable. You also need to ensure that in a valid termination, all accrued entitlements are paid to the employee without delay or hindrance and that you document everything you do.
If you face the difficult task of firing your staff, for whatever reason, then speak to an experiencedemployment lawyer on 1800 217 217 today.
This is legal terminology that often strikes the very core of our business world. Demand letters relating to the alleged infringement of intellectual property rights are often referred to as “cease and desist letters”. Be that as it may, let it be clear that the term wrestles with some other non-business matters as well. For the purposes of our discussion, the meaning and the implication of the term is simplified as follows:
Cease and desist letter made it easy to understand
Our daily lives among many other things are affected by the conduct we are experiencing and the interactions we have with people. We regulate and accept conducts that are aligned with our interests. So, when we see conduct that is unacceptable to our principles/rights, our natural tendency is to see that unacceptable conduct to stop IMMEDIATELY.
This is where the cease and desist letter becomes both meaningful and mechanical. You are basically putting the other party on notice that the type of conduct you are seeing in them ought to be stopped and you really mean it!
Why cease and desist letter is my first step?
The law of good faith requires the members of society to exhaust all measures they can to avoid a court battle. The cease and desist letter may be your first step and the cheapest one that you could do through your lawyer when you desire to see unacceptable conduct stop. No matter how much you feel justified, and how absolute you see the other party at fault, you need to do this before even thinking to pick up a fight with someone to safeguard your rights.
What are the areas covered by the cease and desist letter?
In general, the scope is pretty wide. It can be used to stop someone from defaming you or someone who you deem breaks the law to the disinterest of your business, or someone who breaches the rules of commerce. So yes, it covers both your personal and business life.
How effective is a cease and desist letter?
It all depends on the circumstances and there are many variables involved that can make a cease and desist letter effective or non-effective at all. But, the good news is that it works in most circumstances, and here is the prime reason; When you demand your rights, you are demanding this with reason and essentially you are telling the other party that stopping the non-acceptable conduct right now is not only for your own good but also for the other party to avoid unnecessary hassles and litigation costs. In other words, you are telling them quite nicely that if they stop now, you may not seek any penalty, but if they don’t, you will do so at their peril.
How could I opt to have this letter issued?
No matter how frustrated and upset you may be, my recommendation is not to panic and stay cool. Anger defeats any rational decision-making process. Take the letter or proof of what you consider an infringement of your rights to your lawyer and let him/her advise you as to how to construct a good cease and desist letter and always stay positive and energized.
In the wake of the recent COVID-19 pandemic, the Government has allowed early access to superannuation funds for a certain group of people and traders. Although the early access prescription appears easy to follow, there can be cases that fall on the eligibility borderline. The scales weigh more on the side of eligibility rather than the ineligibility side of early access for the applicant. The simple consequence of this misinterpretation could risk an eligible applicant becoming an ineligible one.
What did the Government say?
The Government would allow early access to the super funds by those affected by the COVID-19 crisis. Basically, an eligible super funds member can withdraw $10,000.00 this financial year which ends on 30 June 2020, and another $10,000.00 next financial year which starts as of 1 July 2020. This is tax-free the Government said. The measure is designed to address the existing hardship on the eligible individuals and traders to whom this new ruling would apply.
I am currently employed but my wife has been made redundant. Can we both apply for early access to our super funds?
If you are still working and it is only your wife who has been made redundant after 1 January 2020, then your wife can only exercise her right of early access to her super funds. To become eligible, she needs to show that either:
As an individual, she was made redundant by her employer, or her working hours reduced by 20% or more; or
As a sole trader, her business has suffered a 20% or more reduction in her turnover.
I am unemployed but receive a job seeker payment. Can I still apply for early access to my super funds?
Yes, you can.
I receive a youth allowance for job seekers. I have not many funds left in my super. Can I still apply for the early access, or do I need to have a minimum available in my super funds?
Yes, you can. So far the Government has not set a benchmark for the available funds in a super account. The Government has however defined the maximum that can be withdrawn from the super funds in this and next financial year.
I currently receive parenting and some other special payments from Centrelink, can I still apply for early access to my super funds?
Providing you meet the individual, or, the sole trader tests above, yes you can.
Having read your article here, I now know that I am eligible to have early access to my super funds, how do I do it?
Applications are to the ATO via the My Gov website. The process is pretty simple. The ATO will verify the applicant, assess the application, record the bank account details, and make a decision. The ATO will then direct the nominated fund to release the requested amount to the bank account specified by the member. It is essential to know is that the member does not need to contact his/her super funds at all in the process.
Just so I could educate myself, what is the total amount that this scheme will allow to be accessed from the super funds, and how much more will be left in the super after?
According to the Government, it is estimated that around $27 billion funds might be taken out via early release, however, this is less than 1% of a circa $3 trillion superannuation in the system owned by the Australian members.
Suffered From Effects Of Defective Building Work in QLD?
You can sue for consequential damage.
This article aims to provide general guidelines for consumers in relation to their defective building work and to shed light on the circumstances scenario where a cause of action may be available to claim consequential damage from the contractor who attended to the work. The guidelines are not meant to be a substitute for legal advice and may not apply to individual circumstances. Please, call our office and discuss your individual case.
The Queensland Building and Construction Commission (QBCC) has been empowered by s 72 of the Queensland Building and Construction Commission Act 1991 (the Act) to direct a contractor, whether licensed or unlicensed, to rectify building work that is either defective or incomplete or to remedy consequential damage caused by or as a consequence of carrying out building work. The direction is commonly referred to as a direction to rectify (DTR).
What is consequential damage?
Consequential damage at law refers to indirect damages or losses not flowing immediately from an act, but rather from the consequences of the act. For instance, loss of business as a result of a fire. In Queensland and in the context of s 71H of the Act, consequential damage is a damage
Caused by, or as a consequence of, carrying out building work at a building site (the relevant site), regardless of any intention, negligence, or recklessness of the person carrying out the work; and
To a residential property at the relevant site, containing the relevant site or adjacent to the relevant site.
What is building work?
The legislative definition of building work includes —
Any work personally carried out whether directly or indirectly;
Providing administration, advisor, management or supervisory services for building work, including:
Entering into a contract or submitting a tender for building work;
Offering (quoting and tendering) to carry out building work;
Taking payment or arranging payment of subcontractors;
Arranging labor or arranging and conducting on-site meetings and inspections;
Preparing plans and specification;
Coordinating the scheduling of work for building contractors even as an agent for another person;
Obtaining engineering or soil reports, or arranging for certificates from local government to be issued, etc;
Supervising building work;
Providing advice or a report for a building;
Contracting for work as a subcontractor to a builder.
What is defective work?
The QBCC Act describes defective building work to include work that is faulty or unsatisfactory. The words faulty and unsatisfactory are to be given their ordinary and natural meaning. In considering whether the work is defective or not, the following may be called in assistance. Any building work which has the characteristics of the following may be considered defective work—
The work does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard; and
The work involves the use of a manufactured product, and that product has been used, constructed, or installed in a way that does not comply with the product manufacturer’s instructions.
In Gemini Homes (QLD) Pty Ltd v QBCC [2014] QCAT 481. The Tribunal opined that—
“… The QBCC is not required to identify a non-compliance with the Building Act 1975, National Construction Code or manufacturer’s instruction, in establishing that the building work is defective. Where defects are evident, yet the cause is unclear, the building work may be determined to be defective and may be the subject of a DTR.”
Where to lodge a complaint about defective and incomplete work?
For information in relation to lodging a complaint with the QBCC for defective or incomplete work, please visit the QBCC website via the following link:
What obligations do I have prior to lodging a complaint?
You need to lodge your complaint as soon as possible. The following timeframe must be adhered to:
A claim under the Queensland Home Warranty Scheme for structural defects must be made within 3 months of noticing the defect;
A claim under the Queensland Home Warranty Scheme for non-structural defects must be made within 7 months of the completion of the work (and the non-structural defect must have come to light within 6 months of substantial completion); and
A request for DTR should be made within 12 months of becoming aware of the defects/incomplete work or consequential damage.
What are structural defects examples?
Leaking roof;
Leaking shower to internal walls; and
Major cracking of walls.
What are non-structural defects examples?
Chipped internal paintwork;
Sticking drawers; and
Minor cracking of plasterboard.
Legal Help.
Aylward Game Solicitors have assisted a number of clients in relation to building defect cases that include mediation to resolution and litigation as possible pathways. We look forward to discussing your options and protecting your rights. Our experienced team can be reached on 1800 217 217.
For those coming to a realisation that the marriage is ending, you’re probably racking your brains on the best way to wrap everything up legally so that you can proceed to ‘recovery’ both emotionally and financially from your potential former spouse. But what actually happens from here? How you approach separation will depend on your individual situation. Fortunately, most states and divorce lawyers offer a few options to try and find the easiest method of a divorce settlement that, once approved through the court, legally terminates your marriage.
Mediated Divorce Contracts
A mediated divorce is a viable option for couples that can speak with each other amicably and agree on most of the main issues as well as in marriages that do not involve complicated child custody or complex financial issues. In a mediated divorce, the two spouses work with a mediator (often an experienced family lawyer) who assists the parties to negotiate the settlement and reach a detachment agreement. The mediator does not decide upon the result but works together with the parties to reach a resolution.
If you think you and your spouse can effectively interact to work out detachment terms, you could reap the benefits of this approach. Mediation costs much less than engaging in court battles plus the decision and approval through the courts is significantly quicker than with traditional separation cases in court.
Collaborative Divorce Contracts
In a collaborative detachment, each spouse hires a qualified collaborative family lawyer who agrees to participate in a collaborative divorce process, rather than an adversarial one (as per contested separation situations). Both family lawyers have to be eager to do something to resolve the matter. In a collaborative divorce process, lawyers and their clients both work to appease the individual needs of the other party while trying to be fair and just to the result. It seeks the most favorable outcome for all parties (particularly the children).
Contested Divorce Settlements
Contested divorce settlements are the kind of divorce that’s regularly in news reports with celebrities ‘out for blood’. Unfortunately, these types of detachment occur in the real world too and generally take place when the two spouses aren’t able to concur on important issues. In the contested divorce, each spouse hires an individual attorney to represent their interests in an adversarial contest.
A contested divorces may be necessary for situations where:
There is a quarrel about how a property or financial assets need to be split
The marriage was abusive
When you are associated with a contested separation, you will need a lawyer who is experienced with divorce litigation, that you trust, and who are able to best represent your interests.
Where to from here?
We’ve helped thousands of separating couples and have a focus on Collaborative practice. Ian Field is a highly experienced mediator and has conducted many hundreds of family law cases, including in a capacity as an Independent Children’s Lawyer (ICL). To speak with someone that can help, call us on 1800 217 217. Aylward Game, Ahead of the Game.
It is essential for you to decide about property settlement if you are thinking to end your relationship. It is good to know how assets split in Australia works.Our article will inform you about the process and rules for property settlement in Australia.Also, you will find tips for getting better results. We also have some examples that can explain to you the working process of the divorce settlement.
You cannot predict the exact outcome of your process, but you can take some steps to get the necessary help.
Get in contact with the best real estate agents in your town.
Get help from experts in a divorce settlement.
What is a property settlement?
If you are getting a divorce, then property settlement will decide how to divide your assets and liabilities. It contains both shared and individual properties.
You can solve this issue without the involvement of Lawyers or the Family Court of Australia, by making an agreement with your partner. It is important to make the agreement formalize with the court to make it legally binding.
The aim of a divorce settlement is to divide assets between couples in a way that they don’t need each other for financial support. This process counts all the properties or financial responsibilities that were involved during the marriage.
Property settlement after a divorce time limit
It is good to resolve this issue as soon as possible if you are having a divorce or getting separated. This involves all the property purchased during marriage or after separation. After divorce, you have a year to apply for property settlement, and after the breakdown of a de facto relationship, you will have 2 years. If unfortunately, you cannot apply during the time, you can apply to the Family Court of Australia for special permission.
The property settlement agreement:
It is a legal agreement between divorced or separated individuals. It contains the arrangements for property settlement after divorce or separation.
There are two approaches for reaching a property settlement agreement:
Both individuals can decide the matter of property division, and then they will formalize their agreement through the court.
You can Family Court of Australia to decide on dividing the assets.
If you can decide without the help of the court, you will save some bucks and time. But it may not be possible in your situation. You may need a lawyer to get some legal advice and a voice for you in court.
The divorce law Australia for property settlement is the same all around Australia, it doesn’t matter in which state you live. Also, it is not mandatory to complete the divorce before dividing the assets. You should go to the settlement as soon as possible.
How much time does the settlement take?
It depends on how you proceed. It will be much faster if you can decide with your former partner. But if it is not possible, then you should go to court. You may have to wait for months or even years to get the result from the court.
Guidelines for dividing assets:
Here is a procedure that you can use in both conditions.
List of all assets and liabilities: Provide a list that contains all of your assets with their values. Both parties submit their own files. We know it as a “pool of assets”. The list includes all individual and shared properties.
Future financial needs: Make an estimate of the future financial needs of each person, to get a fair guess we include the person’s earning capacity, child support, health, age, and financial resources.
Proposed agreement: Create a proposed agreement that shows who gets what.
Assess: Check if the agreement is fair or not. If you are happy with the agreement, then go to court to formalize it, else apply to the court to have a just decision.
If the court is going to decide, then it will also follow a similar pattern. The court will see all of your assets and will also consider the future needs of a person. The court will try its best to give a fair and just decision.
Property Settlement After Divorce
Can I sell the property after divorce?
It is not wise to sell any property before dividing assets. Because everything you own will be a part of the pool of assets. You will need to add it for sorting an agreement for the property. But you can sell it if the other partner agrees.
Tips for dividing assets:
In a divorce settlement, you wish for better results. Remember the following dos and don’ts when going through this problem:
The dos:
Keep a record of all assets or debts.
If you want to sell property, inform your informal partner.
You should get legal advice for both selling and settlement of assets.
Try to use alternatives of the court as it saves time and money. You have two options other than the court
Mediation: In mediation a neutral professional guides the process of settlement. If you can make an agreement through mediation, then the court formalizes it.
Arbitration: It is just like a court, but it is not formal. If both parties decide an agreement there, they register an arbitral award in the court and become binding for both individuals.
The don’ts:
Do not wait until the divorce is final for property settlement.
Do not hide any assets or property.
Property settlement examples:
Johnny and perry had a divorce in Australia, their asset pool was:
A marital home worth 1,200,000 dollars and its mortgage was $700,000, so the total becomes $2,000,000.
They also had a car worth 25,000 dollars.
Perry’s superannuation worth $15,000.
Johnny’s superannuation worth $25,000.
They can make an agreement or the court can decide that Perry gets 60% and Johnny gets 40%. According to their future requirements and financial resources. This is a 60/40 split divorce.
Perry can keep the car, and they both keep superannuation. Johnny will keep the house and will pay Perry so she can buy a place.
Frequently asked questions:
Let’s have a look at the most commonly asked questions for property settlement.
How to work out divorce settlements?
The first step to take for divorce settlements is to get legal help. It is better to make an agreement by discussing with your former partner as it will save you time and a few bucks.
Does a wife have more benefits?
The wife can get half of the assets. In the case of child support, she can even get an amount from the income of her husband.
What did the Government say?
The Queensland Building and Construction Commission (QBCC) has been empowered by s 72 of the 
