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Unfair contract terms regime gets bite

November 8, 2022
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The current unfair contract terms legislation has the effect that consumers and small businesses (currently businesses with less than 20 employees) can seek to avoid unfair terms in contracts. A term of a standard contract is potentially unfair if it: (a) causes a significant imbalance between the rights of the parties; (b) is not reasonably necessary to protect the legitimate interests of the party; and (c) would cause financial or other detriment if it was relied upon. Under amendments recently passed, the 20 employee threshold is to be increased to 100 employees and the monetary thresholds done away with. Furthermore, courts will have the power to impose penalties on persons attempting to impose unfair contract terms, rather than simply declaring the term void. Unfair contract terms are still very common in business to business standard form contracts. Businesses using standard form contracts should assess what provisions are necessary, and take advice on their contracts. For advice on business matters and dealings, please contact Peter Muller peterm@qbmlaw.com.au or Megan Hanneman meganh@qbmlaw.com.au

Yet another home-made Will disaster

November 3, 2022
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It seems that a lot of lawyers could make a decent living if their only work was sorting out home-made will problems. Yet another one has played out in the Supreme Court. The Will maker was 13 years into a de facto relationship who he married shortly after making the Will. He had little contact with the children from an earlier relationship. His Will named his de facto as executor. In the section dealing with the giving of the residue of his estate, after the words “I direct my Executor(s) to pay all my debts and then give the residue of my estate to” he wrote “SAME”. The contest was between his de facto who contended that this meant that he intended his estate to go to her, and some of the children from his earlier relationship who contended that this was not sufficiently certain and that the estate should be distributed as though he was intestate (as a result of which his children would share in it and the amount going to the de facto would be reduced). The de facto wife failed and the estate is to be dealt with as though he was intestate. Significant legal costs were incurred and would reduce the available estate. The will-maker clearly intended to give away his property in a particular way, but because of the inadequacy of the document the Court was not convinced that giving it to his de facto was what was intended. This outcome could have been avoided had a properly drawn Will been made. You dont need to take our word for it, here is the decision https://www.sclqld.org.au/caselaw/QSC/2022/236 For advice on estate planning, wills, and will disputes, please contact Jessica Murray jessicam@qbmlaw.com.au or Peter Muller peterm@qbmlaw.com.au

Got a land tax bill on your home?

October 25, 2022
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Well there is a lot of that getting around in Queensland, with the recent increases in property values. Even where property is owned by an individual, land tax is assessed on its unimproved value insofar as it exceeds $599,999, so this year there have been a number of people receiving bills for land tax because the unimproved values of their home (or their home and investment property) are $600,000 or more. But there is an exemption from land tax for your home, you only have to apply for it. That applies also in some cases where the property is owned by a trust. To apply for the exemption, go here https://www.business.qld.gov.au/running-business/support-assistance/qro-online/how-to-guides/land-tax-exemption Whether an exemption applies to a property owned by a trust, and establishing the right to it, can be a little fussy. Our property lawyers can help – contact Megan Hanneman meganh@qbmlawyers.com.au.

Residential Tenancies changes – ending month to month tenancy

October 24, 2022
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From 1 October, 2022, Queensland’s residential tenancy law (contained in the Residential Tenancies and Rooming Accommodation Act 2008) has been amended in various ways, one of which significantly restricts the ability to terminate month to month tenancies. Previously, a month to month tenancy (called a periodic tenancy – which can either be a tenancy which has no fixed term, or arises when a fixed term tenancy expires) could be ended by the landlord giving two months notice without giving any reason. This was called a Notice to Leave without ground. Since 1 October, 2022, the without ground basis has been ended, so a notice to end a month to month tenancy has to state a ground. There are a number of grounds – eg unremedied breach (sec 281), agreement frustrated (sec 284), premises sold or being prepared for sale (sec 286), serious breach (sec 290A), planned demolition or redevelopment (sec 290C) or significant repair or renovations (sec 290D), or owner to occupy (sec 290G) [this list is not exhaustive] however the point is that there has to be a reason. Contrast this with the fixed term agreement coming to an end, in which case the owner can give two months notice to leave regardless, but that right is lost when the periodic tenancy starts. There are offence provisions if certain notices are false or misleading (sec 365A) and restrictions on letting the premises out within 6 months if the notice is for the property being sold, changing use, or for owner occupation (secs 365B – D). More than ever residential tenancies are becoming a difficult area to navigate, now with further offence provision. For advice on property law, contact Peter Muller at peterm@qbmlaw.com.au

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Unfair contract terms regime gets bite

Yet another home-made Will disaster

Got a land tax bill on your home?

Residential Tenancies changes – ending month to month tenancy

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