Frequently Asked Questions
Lynn & Brown Lawyers - Perth, Morley & Ellenbrook
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Do I need a Will?
Every adult should have a Will. The whole idea of estate planning is to make sure your assets end up in the hands of the people you want to receive them.
What is my ‘estate’?
Your ‘estate’ is the word used to describe all assets and liabilities in your sole name, or in which you have a distinct interest, when you die.
Assets include items such as a car, house, money in your bank account, clothing, furniture, Refundable Accommodation Deposit, cash and jewellery.
Are there alternative solutions?
If successful you may be entitled to a remedy but this is up to the discretion of the court. A remedy may include damages in the form of a financial compensation; an injunction which is stopping a person from doing a specific thing or it may require them to do something.
What are the outcomes of litigation?
If successful you may be entitled to a remedy but this is up to the discretion of the court. A remedy may include damages in the form of a financial compensation; an injunction which is stopping a person from doing a specific thing or it may require them to do
How long do I have to commence litigation?
Nearly all causes of action have a limitation period in which an action must be brought before the court. A failure to bring an action before that time can mean you are unable to commence proceedings. Limitation periods vary for different types of matters. You should seek advice as soon as possible.
What does litigation involve?
It involves commencing proceedings in court to resolve a dispute. The first stage usually involves what is known as pleadings. Pleadings are a formal way to tell the court and the other party your story. The plaintiff will file at court a statement of claim and the defendant a defence. After that occurs, often a process known as discovery occurs. During this stage, each party must disclose to the other all documentation they have relevant to the matter. The parties are then usually directed to a court-based mediation. If the matter is still not resolved, it will proceed to a trial-based resolution.
What happens if you are being sued?
If you have received court proceedings or some other notification indicating you are being sued, it is important to get legal advice so you can understand your rights and obligations. Time is of the essence because you usually only have a limited amount of time to respond. If you do not file a response in time, the other party may obtain judgment against you. Our team has proven success in resolving disputes quickly and easily in order to achieve the best outcomes for you.
How is negotiation used to resolve conflicts?
For negotiations to be successful, it usually requires both parties to compromise from their best case scenario. The benefits of a negotiated resolution is that the dispute is finalised, you take the risk off the table of a worse result occurring, you will limit your legal fees and you will avoid the ongoing stress and uncertainty of litigation.
How do you choose the right business structure for your business?
If you are thinking of starting a business, you will need to consider the different business structures available to you and work out which structure will best suit your needs. In Australia, businesses are commonly structured as sole traders, companies, partnerships, discretionary trusts and unit trusts. It is important to seek professional advice (from a lawyer, accountant, or business adviser) before deciding which business structure to use.
What happens when a company goes into administration?
If a company becomes insolvent, it will need to go into administration. Voluntary administration occurs when the directors of a company decide to appoint an administrator to take control of the company. A qualified insolvency practitioner will be appointed to ‘take over’ the company in an effort to investigate it and potentially save it.
What should you consider before signing a contract?
We often find that when businesses and individuals are signing contracts that it is a busy time in the business or individuals’ lives. There is often a lot going on and a lot of excitement about the endeavour about to be entered into. It is often, therefore, a temptation for businesses to rush into a transaction before proper reflection and consideration occurs.
Do you need a shareholders’ agreement?
A shareholders’ agreement is a contract signed by the shareholders of a company, which regulates their obligations and rights, as well as what should happen if certain situations arise.
Do you need a commercial lawyer when starting a business?
One of the most satisfying tasks we perform at Lynn and Brown Lawyers is to work with our clients to either purchase or sell a business. We all know how stressful it is buying or selling a property and hoping to achieve a successful outcome. These stresses are no different to those that exist around buying or selling a business, particularly if that business is one you have built from scratch or the business that you are looking to buy is as a result of a significant lifestyle change or ambition for the next stage of your career.
Can you terminate a contract?
Contracts are everywhere in our life, from simple sale and purchase agreements, service supply, property leasing, to employment, banking and investments. Like many of us, you may have been stuck in a contract and wanted to get out. Can you? There are different ways to end a contract. However, contracts are binding legal instruments, so a free exit ticket may not always be available.
How do you terminate a retail or commercial lease?
Do you rent a retail or commercial property and want to end the lease? The first thing you should always do is check the terms of your lease agreement. Different agreements may include different methods for termination or different situations that allow you to terminate the lease. Landlords can usually terminate a lease if the tenant is late with rental payment for 7 days or if the tenant materially breaches the lease and does not rectify the breach after being notified for 14 days. These are standard lease clauses, but each case will turn on the actual lease.
What should I look out for in terms and conditions?
Before accepting someone’s terms and conditions things to look out for include: your ability to terminate, additional charges, payment obligations, variations, exclusions and limitations of liability, warranties or guarantees as to results.
How can I avoid a bad contract?
A good lawyer, with experience, can often foresee things others could not. Sometimes there is nothing you can do about an unforeseeable event happening after you agree to a contract, but there are some things you can do to ensure your contract is as well drafted as possible. We have decades of experience on contract disputes. We will use this experience to protect you.
Can company directors be liable for company debts?
Operating your business or investments through a company provides a lot of protection for those operating the company, known as directors. However, increasingly, in Australia the protection of directors is being wound back. Directors can be liable for some company’s debts, such as, PAYG and staff superannuation. Also, if the company trades insolvently and certain occupational health and safety penalties.
What are the rights of creditors when a company is in administration?
Once a company goes into administration or liquidation, creditors can have limited recourse against the debtor. You will join the queue with all other creditors unless you have security such as a mortgage, a caveat or a PPSA registration against assets of the company. If you have security, you will have rights to those assets before other unsecured creditors.
What does a franchise agreement cover?
Franchises are regulated under the Franchising Code of Conduct (the Code), which is given the force of law under the Competition and Consumers Act 2010 (Cth). The Code specifies both the franchisors and franchisees’ rights and responsibilities, and it serves to regulate such agreements. Franchise agreements cover the rights and obligations of both the franchisee and the franchisor. You should see legal advice before entering into a franchise agreement.