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Apr 08
COVID & Landlords of Commercial & Retail Premises

News Alert: COVID & Landlords of Commercial & Retail Premises

By Articles, Property Law

Landlord and Tenants on Commercial, Industrial and Retail Premises

As promised, here is the latest update on the evolving situation with Landlord and Tenants on Commercial, Industrial and Retail Premises. The Prime Minister has announced this afternoon that the National Cabinet has met and has made some decisions around this space, which we have all been waiting for.

Most importantly, it has been announced that the National Cabinet have introduced a Mandatory Code which will be legislated in each State. Landlords and Tenants are required to comply with the terms of this Mandatory Code.

The code will require Landlords and Tenants to negotiate in good faith. Landlords aren’t going to be able to terminate a Lease and Tenants are going to have to comply with the remaining terms of the lease.

The Code will apply where the business of either the Landlord or the Tenant has suffered as a result of the Covid-19 Pandemic, so that either business is an eligible business under the governments recently announced Commonwealth JobKeeper program and has a turnover of less than $50 Million.

The parties are then going to have to reach an agreement whereby the proportionate amount of reduction in a Lease rental will apply in cases where the Job Keeper Program already applies to that business. The reference to the Proportionate amount is the amount of reduced turnover of the Business suffered as a result of the  Covid-19 Pandemic.

In that circumstance and if those provisions apply, then the rental will be required to be reduced proportionate to the reduction in the business (for example if a business’s turnover has reduced by 50%, that business will see a 50% reduction in the rental for the period of the Pandemic). This rent reduction can be made up of “rental waiver” and “rent deferral”.

In respect of those proportions the  “rent free” proportion must make up at least 50% of the rental relief. The “rent deferral” component can be deferred and paid back over a period of not less than 12 months, but usually will be paid back over the remaining term of the lease (for example if the remaining term of the lease is longer than 12 months it would be paid back over the entire term, however if the lease term is shorter than 12 months that tenant will still have 12 months to repay those rent monies).

Rental increases under a lease will be frozen and penalties and interest charges will not be able to be charged, nor can guarantees or bonds be called upon.

These are important changes as the landscape is constantly changing and as things arise further, I will continue to keep you updated. Please remember though any agreements reached between Landlords and Tenants must be documented as the potential disputes in the future will be greater than the problem itself.

Please keep safe and if you have any queries whatsoever please do not hesitate to contact our Gold Coast lawyers.

Apr 07
How Landlords Should Respond to COVID-19

How Landlords Should Respond to COVID-19

By Articles, Property Law

We understand that being a Landlord at the moment is an extremely difficult time. We all await further clarification from the Federal Government as to what incentives, if any, will be offered to Commercial Landlords to assist with concessions that may need to be made with their Tenants. Some Australian Banks have announced they will defer loan repayments on loans up to $10 million dollars for Landlords that provide certain assistance to Tenants.

There are a number of incredibly important considerations for a Landlord during this time including maintaining a relationship with Tenants, ensuring that once we emerge from this crisis that your commercial premises have sustainable tenancies and businesses that can hopefully rebound and continue to operate and add value to your properties and the ongoing consideration of ensuring you have sufficient income to meet your financial needs.

With this in mind, a number of Landlords have been receiving approaches from Tenants regarding rental waivers or assistance packages. Given that we cannot be fully aware if any assistance is going to be provided to Commercial Landlords, we see the following as the 3 main options available to our Landlords at this time:

  1. Provide a “Rental Waiver” – this is a fairly simple process of waiving rental for a specific period of the lease. We would need to be specific as to whether this includes or excludes outgoings;
  2. Provide a “Rental Reduction” – this is a process where the rental may be reduced depending on the reduced capacity of the Tenant and again should be specific as to whether it includes or excludes outgoings;
  3. Provide a “Provision of a Rent Moratorium” – this would relate to a specific period where rent is frozen. This means that the rent is not payable under the lease however it is not forgiven or waived by the Landlord. The Landlord could advise that after the Rent Moratorium period the Landlord will reassess the rental during the moratorium period which should allow a Landlord to either require repayment of that rental (say over the period of the remainder of the lease or some other period determined by the Landlord) or alternatively, the Landlord could agree to forgive or reduce that rental at that time;

This last alternative allows the Landlord to defer making a final decision in the reduction or waiver of rental until further information is to hand, including the length of this current crisis and the basis on which each individual is able to recover from the downturn.

We believe the most important element of any of these solutions is that the Landlord properly document any agreement which is reached. No agreement should be reached without proper review and documentation. The reason this remains so vital is that the greatest asset that the Landlord will have is the value of their premises and potentially the ongoing tenancies. If there is dispute at a later point regarding what agreement was reached or the specific terms of that agreement or the ability of the Landlord to later make a determination, each of these may result in substantial dispute and/or

litigation at a future point in time. This has the potential to cause more damage than the current situation if in the instance the Landlord is in a dispute with a large number of its Tenants.

We would recommend that each Tenant is dealt with on a case by case basis and bound to strict confidentiality failing which any agreement may be forfeited.

It may further be prudent that:

  1. the Landlord negotiate the terms subject to final agreement and documentation to save incurring any unnecessary costs; and
  2. the costs of documenting by the agreement are either born by the Tenant or potentially on a shared basis between the parties OMB Solicitors will assist with this documentation.

We believe this is an essential time for our Landlords and we look forward to providing you whatever assistance you need during this period.

Apr 06
Levies COVID-19

News for Owners Corporations (NSW) Regarding COVID-19 and Levy Recovery.

By Articles, Body Corporate

Frequently Asked Questions About Levies & the Impact of COVID-19

Owners Corporations are challenged with balancing its statutory obligations with the rights of owners and occupiers (and the broader community) during this unfortunate pandemic. As the uncertainty surrounding COVID-19’s impact on the nation, and the world, continues OMB Solicitors Gold Coast address three frequently asked questions about current levy recovery procedures.

Whilst Owners Corporations and residents must consider the impact of COVID-19 on their buildings, including implementing appropriate steps to limit transmission of the virus, Strata Committee’s need to continue making decisions to ensure the obligations of the Owners Corporation are met.

  1. How might a Strata Committee deal with a failure of a lot owner to pay levies considering the impact of COVID-19?

Given the social and economic impacts of COVID-19, Strata Committees need to draw an appropriate balance between compassion for individual circumstances and maintaining a scheme’s healthy financial status. In this regard, it is likely that Strata Committees may be faced with increased hardship and payment plan requests from lot owners. It is important, during these times, for Strata Committees to consider each matter on a case by case basis and (if necessary) ask lot owners to provide evidence of financial hardship (i.e. redundancy letters or a Statement of Financial position) prior to making a decision.

Whilst there is no obligation on a Strata Committee to waive any portion of the debt, circumstances may arise which warrant a waiver of interest or a payment plan that would see the debt satisfied within a reasonable period of time.

In this regard, any payment plan requests need to be considered having regard to the lot owner’s payment history, the future needs of the scheme, how many lots are in the scheme and how the payment plan request may impact upon the day to day running of the scheme i.e. paying for insurance, caretakers or other essential expenses.

If an owner has been in arrears for a significant period of time and prior to March 2020, then the Strata Committee ought to consider a separate strategy of the management of that debt (in consultation with its legal advisors).

  1. How is OMB Solicitors dealing with levy recovery processes during the COVID-19 Pandemic

OMB Solicitors have implemented several strategies in dealing with levies moving forward. These strategies include:

  1. a compulsory telephone call from our experienced staff to all owners referred to levy recovery to ensure a specific examination of the individual circumstances, which will result in an appropriate management of the debt; NEWS FOR OWNERS CORPORATIONS LEVIES & THE IMPACT OF COVID-19 As at 27 March 2020
  2. providing additional advice to the Strata Committee prior to the institution of legal proceedings (if such proceedings are necessary), including advice on hardship and payment plan requests;
  3. increasing the timeframes for debt management and exploring the financial options with each individual lot owner; and
  4. discussing with the Strata Committee how to manage and meet its financial obligations during the COVID-19 Pandemic.

  1. Should the Strata Committee refer a lot owner to levy recovery given the COVID-19 Pandemic?

The short answer is yes.

An Owners Corporation is responsible for looking after common property and attending to all repairs. Accordingly, to ensure the Owners Corporation can meet its financial obligation of insurance, repair, maintenance and cleanliness – contributions must continue to be paid by owners.

Whilst there are legislative change with respect to enforcement of Judgments (i.e. bankruptcy and Statutory Demands), unfortunately there are no amendments to the regulations governing how an Owners Corporation recovers a levy from a lot owner (at this stage). Accordingly, Strata Committees are doing their best to manage the impact upon the financial circumstances of their scheme by operating “business as usual” with the overriding considering of addressing the effect of the virus on lot owner’s individual circumstances.

A message from OMB Solicitors

During these times of uncertainty, OMB Solicitors have implemented an action plan to ensure all levy recovery matters are actioned in a timely and appropriate fashion. We confirm that we are currently running business as usual and are taking steps to continue to minimise any disruption.

Over the last 2 years, OMB has invested heavily in technology which allows us to seamlessly work remotely if required and have been operating electronic Body Corporate files for approximately 12 months.

As this pandemic is ever evolving, our action plan and our levy recovery processes are fluid and will continue to adjust as we monitor the situation via the Australian Government Department of Health and World Health Organisation.

At OMB Solicitors we are all doing our part to minimise the risk of infection including practicing social distancing. In conjunction with this, we ask that all meetings are conducted via phone call or video conferencing. Should an onsite meeting be required, we further request that you advise if you have previously been in contact with the Coronavirus or have travelled within the last 14 days prior to the meeting.

If you have any questions regarding the above, please do not hesitate to contact our Gold Coast lawyers.

Apr 02
COVID-19 Rent Relief

COVID-19 Rent Relief

By Articles, Property Law

As you are all aware, we are all anxiously awaiting the announcement of the Government’s rent relief package which is expected as part of the third stimulus package, as a result of the COVID-19 crisis.

We understand that tenants are now coming forward requesting rental relief in the form of reduced rental and/or no rental for a certain period of time due to the economic crises we are currently facing. At present it is too early to know how best to fix the situation until we have a better idea of how long this crisis will last and what other relief will be forthcoming. We do suggest that where assistance is given, it is given on a case by case basis for now.

It is imperative for all Landlords and Tenants to support each other as best they can in this crisis. However, any discussions on rent abatement, short-term agreements to defer some rental and any negotiations be put on hold until we know the full extent of the Government and financial institution relief package which should roll out in the next few days and weeks. Landlords and Tenants will then be able to make an informed decision and enter into negotiations which will benefit both the Landlord and the Tenant for the foreseeable future.

It is important to remember that where the tenants have been in substantial arrears prior to the onset of the COVID-19 pandemic, those rental arrears would not form part of any relief provided but would remain in place.

Further, it is important to note that where an agreement for rental reduction or rental abatement is being offered, you might also consider reaching an agreement with your current tenants to extend the lease term and exercise options early. Any variations to Leases or agreements reached should be documented by way of the appropriate Deeds to safeguard both Landlords and Tenants.

Both Simon and his Commercial/Property Team are here to help guide you step by step through this trying time and we will be sending  further emails to you explaining the options and obligations for both Landlords and Tenants once we are in receipt of the full information from the Government in the coming days/weeks.

In the meantime, please do not hesitate to email or phone either Simon or Lisa with any queries or concerns you may have.

Stay safe!!

Mar 25
Body Corporate Levies

News for Bodies Corporate (QLD) Regarding COVID-19 and Levy Recovery

By Articles, Body Corporate

Frequently Asked Questions About Levies & the Impact of COVID-19

The Queensland Government recently reported that “Bodies Corporate and their committees have a statutory obligation to act reasonably”, which includes balancing the statutory obligations of a Body Corporate with the rights of owners and occupiers (and the broader community). As the uncertainty surrounding COVID-19’s impact on the nation, and the world, continues OMB Solicitors address three frequently asked questions about current levy recovery procedures.

Whilst Bodies Corporate and residents must consider the impact of COVID-19 on their buildings, including implementing appropriate steps to limit transmission of the virus, Committee’s need to continue making decisions (i.e. by way of VOCM) to ensure the obligations of the Body Corporate are met.

  1. How might a Committee deal with a failure of a lot owner to pay levies considering the impact of COVID-19?

Given the social and economic impacts of COVID-19, Committees need to draw an appropriate balance between compassion for individual circumstances and maintaining a scheme’s healthy financial status. In this regard, it is likely that Committees may be faced with increased hardship and payment plan requests from lot owners. It is important, during these times, for Committees to consider each matter on a case by case basis and (if necessary) ask lot owners to provide evidence of financial hardship (i.e. redundancy letters or a Statement of Financial position) prior to making a decision.

Whilst there is no obligation on a Committee to waive any portion of the debt, circumstances may arise which warrant a waiver of interest or a payment plan that would see the debt satisfied within a reasonable period of time.

In this regard, any payment plan requests need to be considered having regard to the lot owner’s payment history, the future needs of the scheme, how many lots are in the scheme and how the payment plan request may impact upon the day to day running of the scheme i.e. paying for insurance, caretakers or other essential expenses.

If an owner has been in arrears for a significant period of time and prior to March 2020, then the Committee ought to consider a separate strategy of the management of that debt (in consultation with its legal advisors).

  1. How is OMB Solicitors dealing with levy recovery processes during the COVID-19 Pandemic?

OMB Solicitors Gold Coast have implemented several strategies in dealing with levies moving forward. These strategies include:

a compulsory telephone call from our experienced staff to all owners referred to levy recovery to ensure a specific examination of the individual circumstances, which will result in an appropriate management of the debt;

providing additional advice to the Committee prior to the institution of legal proceedings (if such proceedings are necessary), including advice on hardship and payment plan requests;

increasing the timeframes for debt management and exploring the financial options with each individual lot owner; and

discussing with the Committee how to manage and meet its financial obligations during the COVID-19 Pandemic.

  1. Should the Committee refer a lot owner to levy recovery given the COVID-19 Pandemic?

The short answer is yes.

As advised by the Queensland Government, it was confirmed that a Body Corporate must maintain common property in good condition (including the cleanliness of such common property). Accordingly, to ensure the Body Corporate can meet its financial obligation of insurance, repair, maintenance and cleanliness – contributions must continue to be paid by owners.

Whilst there is legislative change with respect to enforcement of Judgments (i.e. bankruptcy and Statutory Demands), unfortunately there are no amendments to the regulations governing how a Body Corporate recovers a levy from a lot owner (at this stage). Accordingly, Committees are doing their best to manage the impact upon the financial circumstances of their scheme by operating “business as usual” with the overriding considering of addressing the effect of the virus on lot owner’s individual circumstances.

A message from OMB Solicitors

During these times of uncertainty, OMB Solicitors have implemented an action plan to ensure all levy recovery matters are actioned in a timely and appropriate fashion. We confirm that we are currently running business as usual and are taking steps to continue to minimise any disruption.

Over the last 2 years, OMB Solicitors has invested heavily in technology which allows us to seamlessly work remotely if required and have been operating electronic Body Corporate files for approximately 12 months.

As this pandemic is ever evolving, our action plan and our levy recovery processes are fluid and will continue to adjust as we monitor the situation via the Australian Government Department of Health and World Health Organisation.

Gold Coast lawyers at OMB Solicitors we are all doing our part to minimise the risk of infection including practicing social distancing. In conjunction with this, we ask that all meetings are conducted via phone call or video conferencing. Should an onsite meeting be required, we further request that you advise if you have previously been in contact with the Coronavirus or have travelled within the last 14 days prior to the meeting.

 

Mar 19
Force Majeure

Force Majeure: How does an ‘Act of God’ Clause Affect Your Contract

By Articles, Property Law

On 30 January 2020, the Director General of the World Health Organisation declared the novel coronavirus COVID-19 (“Coronavirus”) outbreak around the world a “public health emergency of international concern”.

We recognise in this difficult time, many of us may be also concerned with our ongoing contractual obligations and how the unforeseeable event of Coronavirus may affect the contracts that we are parties to. In this article, we shall provide insights on what is a force majeure clause and how the Coronavirus may affect contractual obligations.

What is Force Majeure?

Force majeure is a legal concept designed to provide remedies for parties affected by an unavoidable or unforeseeable event. Common examples of force majeure events include earthquake, explosion, natural disaster, terrorism and war.

Eventhough force majeure is a civil law concept, force majeure clauses are used in Australian contracts because of its similarity to the doctrine of frustration in common law. The doctrine of frustration applies when the performance of a contract must be radically different from what was intended by the parties.

Does Force Majeure apply to the Coronavirus outbreak?

The Coronavirus is a recent new global crisis, therefore it is not likely that contracts will include express clauses referring to the event of a Coronavirus outbreak. Whilst in China, the government has issued thousands of Force Majeure Certificates for businesses relying on force majeure clauses in contracts, it is still uncertain whether the Australian government will provide similar provisions. The questions that should be addressed are:

  1. Is Coronavirus considered a force majeure? This will largely be determined by a particular clause and that specific drafting of the clause.
  2. What notice is required to be given to enact the force majeure? It is often essential that correct notice be given pursuant to the specific clause.
  3. What relief can be obtained? Often if the appropriate clause applies, the relief may be temporary for the period of time that the event occurs.
  4. Is there an obligation on either or both parties to mitigate their loss?

If there is no force majeure can the common law help?

Without new government provisions, the test required in common law is to analyse the risks the parties agreed to take and the precise wording in the contract. In addition, the party relying on the clause will need to prove to the court that the event is beyond the reasonable control of the party seeking relief.

In Australia, frustration may be applicable in the following circumstances:

  1. A change in law rendering performance illegal. In the current situation, if the law requires the quarantine of a personal service provider, the service provider will be frustrated by such unexpected event as not quarantining and performing personal services to other individuals will be considered illegal.
  2. Physical destruction of the subject matter of the contract. In the situation of Coronavirus, an example would be if goods are contaminated and required to be destroyed. In such event, if the goods are being traded, the destruction of the goods may render the contract frustrated due to unexpected events.
  3. Restraint by injunction. In the landmark case of Codelfa Construction Pty Ltd v State Rail Authority of NSW, construction work noise affected the local residents and work shifts needed to be reduced as a result of injunctions. The majority of the court considered that the contract had been frustrated. In the current situation, if the government restrains trade by injunction due to infected personnels, this may give cause to frustration in contract.

It is important to note that irrespective of the magnitude of the Coronavirus outbreak, parties to a contract are still under an obligation to provide notice if the party seeks to rely on a force majeure clause or the doctrine of frustration under common law.

Force Majeure in Property Contracts

In Queensland, there is no automatic right to pull out of a contract even in the event that a property is damaged. In addition, most Queensland property contracts indicate that “time is of the essence”, this means time limits must be strictly observed in all circumstances and there is no automatic right for a party to extend dates because of delays.

Property Purchase and Sale Contracts

In the standard Real Estate Institute of Queensland Contract for Houses and Residential Land (“the Contract”), clause 6.2 provides a Suspension of Time clause for events when a party is unable to perform a Settlement Obligation solely as a consequence of a Delay Event. Such Event is defined in clause 6.2(8)(b) to include:

  1.  A tsunami, flood, cyclone, earthquake, bushfire or other act of nature;
  2. Riot, civil commotion, war, invasion or a terrorist act;
  3. An imminent threat of an event in paragraphs (i) or (ii); or
  4. Compliance with any lawful direction or order by a Government Agency.

If you are currently negotiating a real estate contract, it is important for a special clause to be inserted in regards to Coronavirus/a pandemic.

If the contract has already been signed, it is important to note that you are only entitled to an extension if the other party agrees to an extension. In the current circumstance, if you become aware that there may be a potential delay due to the outbreak, it is important to communicate with the other party as soon as possible and negotiate a new settlement date.

Conclusion

Given that there is no clarity yet as to when the Coronavirus outbreak will be contained, it is important for parties under contractual obligations to prepare for circumstances where the relevant contractual obligations may be affected. Consult our Gold Coast lawyers for advice appropriate to your situation.

If you are in current contract negotiations, you should certainly consider including a force majeure clause that will protect you from the consequences of being unable to perform contractual obligations due to Coronavirus and other similar biological disasters.

Jan 16
Short Term Letting

Short Term Letting – Body Corporate

By Articles, Body Corporate

The advent of short-term stay platforms such as Airbnb and Stayz have been a boon both for those looking for extra accommodation options in popular locations and those looking to make some extra income from letting out a spare room or granny flat in their residence, or their entire property.

But this evolution of the internet’s ‘gig’ economy has also brought with it some pertinent legal challenges. For example, what are the implications of short-term letting when you own a property within a body corporate?

Bodies corporate are perhaps naturally predisposed to resisting the trend to short-term letting, worried about the overall effect of itinerant people passing through the property, a concern perhaps enhanced by some media horror stories of properties short-term let by people who use them for raucous, all-night parties.

A couple of court decisions in recent years have helped clarify the issue of whether a body corporate can, through its by-laws, ban owners from letting part of their property through a platform such as Airbnb, which we’ll look briefly at in this article.

The case of Hilton Park CTS 27490 v Robertson

In this 2017 Queensland Civil and Administrative Tribunal (QCAT) case, the position of owners within bodies corporate was clarified when the Tribunal ruled that unit owners were legally entitled to offer their units for short-term rentals. QCAT stated that any attempt made by the body corporate to restrict owners from using their property in this way through a by-law or by other means was invalid and was not enforceable.

The decision relied on s 180(3) of Queensland’s Body Corporate and Community Management Act 1997 (“BCCMA Act”), which essentially states that by-laws cannot restrict the type of residential use of the lot if the lot may lawfully be used for residential purposes. In addition to the above, as the term ‘residential’ has not been clarified or defined, it is to be broadly interpreted and so permits any residential use of the lot.

The decision in this case remains the law for properties which fall under the BCCMA Act.

More recently in 2019, the general view of banning short term letting was challenged by the Fairway Island GTP v Redman and Murray decision, where the body corporate successfully banned short-term letting through the use of a by-law.

The case of Fairway Island GTP v Redman and Murray

In this decision handed down in the Queensland Magistrates Court, a Hope Island resort on the Gold Coast successfully relied on one of its by-laws to ban short-term letting through platforms such as Airbnb by its lot owners.

The key difference with the decision in the Hilton Park case of 2017 is that the resort in question in this case remained governed by earlier legislation, the Building Units and Group Titles Act 1980 (Qld) (“BUGTA”), rather than the BCCMA.

Significantly, BUGTA does not place the same statutory restrictions on by-laws as the BCCMA, the latter ensuring that a by-law cannot be oppressive or unreasonable having regard to the interests of all owners or occupiers of lots and the use of the common property.

The implications

The vast majority of Queensland’s 50,000-plus strata schemes are governed by the BCCMA and so the decision in Hilton Park remains the more applicable law. But the decision in Fairway Park has emboldened managers of strata schemes to urge the state government to reconsider the ability of bodies corporate to restrict short-term letting by unit owners.

The Strata Community Association (Qld), for example, which represents more than 1.2 million Queenslanders who live in apartments, units, townhouses and other strata title property, welcomed the Fairway Park decision for restoring the power of the body corporate to make a by-law that “protects community interests”.

Additionally, some legal commentary has suggested that future applications by bodies corporate regarding short-term letting under the BCCMA may rely on the Magistrate’s interpretation of the term ‘residential’ under BUGTA in the Fairway Park decision.

For the majority of owners in Queensland, though, bodies corporate cannot prohibit the letting of your property through platforms such as Airbnb and Stayz through by-laws.

If you are unsure of the status of your property under the current law, and are interested in either undertaking, or preventing, short-term letting within the property, contact our Gold Coast lawyers today. We are experienced, expert legal professionals on all matters relating to body corporate and strata management. Call our body corporate team today on (07) 5555 0000.

Jan 10
Defamation in Strata

Defamation in Strata. What You Need to Know

By Articles, Body Corporate

Anyone who has had dealings with strata management and bodies corporate will know that in worst-case scenarios, they can become minefields of petty politicking and administrative overkill. Often, relations between managers and owners/tenants can become so acrimonious as to lead to legal action between the parties, as a number of high-profile court cases demonstrate.

The focus of this article is on the legal action of defamation, where either tenants/owners or strata managers have sued for statements they believe damage their personal or professional reputation.

It’s helpful to begin with a quick look at what constitutes defamation and what the law does to protect those who believe they’ve been defamed. Defamation is designed to protect people from false or damaging statements being made about them that may cause harm to their personal or professional reputation. A successful action for defamation can provide compensation for financial and other losses resulting from a defamatory publication of any kind.

What constitutes defamatory material? Emails, articles, blogs, novels, poems, photos, songs, cartoons, drawings, paintings, online reviews, social media posts and more can be defamatory. Material that is defamatory can also be broadcast or spoken, i.e. on a TV or radio show, or in a public presentation.

Case example 1

In Walden v Danieletto, a Queensland case decided in 2018, Mr Walden, a lot owner, owed overdue levies to the body corporate. He paid this online the day before a general meeting of the body corporate but because the amount he paid did not exactly match the amount owing, the system operated by the body corporate manager – Mr Danieletto – did not pick up the payment.

As a result, the body corporate manager declared at the general meeting that Mr Walden was “unfinancial”, a finding also entered into the minutes.

Mr Walden took exception to this declaration on four grounds, saying it imputed that he was a delinquent payer; could not afford to pay his body corporate levies; had financial difficulties; and was insolvent.

Mr Walden commenced defamation proceedings against Mr Danieletto claiming his reputation had been damaged to the amount of $100,000. The action failed in the Magistrates Court, the judge finding that Mr Walden had not been defamed and that, even if he had been, the matter was trivial and the defence of qualified privilege (that is, Mr Danieletto’s acts were committed in the performance of a legal or moral duty, were properly exercised and free from malice) applied. The magistrate found there had not been malice on the part of the body corporate manager, he’d just been doing his job.

“Do people hate or ridicule one another about overdue bills?” posited the magistrate in explaining why Mr Walden had not been defamed. “Do these cause people’s estimations of one another to be lowered where neither the amount, the period they are late, or the reason are known? Clearly not. Ordinary people accept that other ordinary people are neither infallible or perfect.”

Mr Walden appealed the decision and again lost, with the District Court judge upholding the original decision and again finding that:

  • Reputational harm could not have occurred because the matter was so trivial.
  • The actions of the body corporate manager were reasonable in giving members of the body corporate information about which they had an interest in receiving.
  • The owner had commenced numerous proceedings against the body corporate and if other owners were poorly disposed towards him, it was more likely to be because of this than anything the body corporate manager did.

Case example 2

In the 2019 NSW case of Murray v Raynor, apartment block tenant Ms Murray won an appeal against a NSW District Court decision finding that she had defamed My Raynor, chair of the block’s strata committee, in an email she sent to fellow tenants in response to Mr Raynor’s emails to her insisting that she lock her mailbox.

Mr Raynor was awarded $120,000 in defamation damages, including an amount for aggravated damages, after the District Court judge found Ms Murray had no defence to Mr Raynor’s claim that her email implied he was a “small-minded busybody”.

However, this matter went on appeal to the NSW Court of Appeal where the original decision was set aside on the basis that a defence of qualified privilege was available to Ms Murray. The court also found the award of aggravated damages to Mr Raynor was “manifestly excessive” for an email that was addressed to 16 other people. The decision has also cast doubt on the statutory cap on damages for non-economic loss in defamation cases where aggravated damages are awarded.

In conclusion

As is clear from the cases cited here, the bar is quite high in order to prove you have suffered reputational damage in the context of strata matters.

Understanding the most common defences to defamation can help you understand whether commencing an action against someone you believe has published or said something defamatory about you is a good place to start. Legal professionals experienced in this area of the law can help explain these defences, which may include that:

  • the publication was an honest opinion, rather than statement of fact;
  • the publication was of public concern or substantially true;
  • the publication was obligatory for a legal, social or moral reason;
  • you are unlikely to have sustained any real harm to your reputation;
  • the person you claim defamed you did not know or ought not to have known that the published material was defamatory;
  • the publication was made in a privileged context (parliament, a court, a tribunal, etc).

OMB Solicitors has specific experience in acting for both clients who have been defamed and also defending clients that have been accused of defamation. We have a good understanding of the alternative dispute resolution requirements contained in Queensland’s Defamation Act, as well as how to progress a matter through the court system if the matter cannot be resolved through mediation.

If you consider that you have been defamed or you find yourself in a situation where someone is alleging that you have defamed them, then OMB Solicitors can help. Contact us today on (07) 5555 0000.

Jan 02
First Family Law Appointment

Your First Family Law Appointment

By Articles, Family Law

One of the most challenging — and rewarding — aspects of practicing family law is helping clients through some of the most challenging times of their lives. More often than not, they are going through separation and/or divorce, and need help with financial or parenting matters. In some cases, they are seeking legal advice about both. Accordingly, we do everything necessary to ensure that our clients understand their legal options. We also ensure that they have the information they need to make informed decisions.

This process begins at your first appointment. Since being prepared for this meeting will help alleviate your stress and anxiety, we’ve decided to share some insight into what usually happens at this time. Keep reading to learn more.

What to expect

When you schedule your first meeting, we’ll ask you to provide some basic information about yourself and your case. We may also ask you to provide additional details on an intake form when you come in. However, the initial consultation is your first chance to share your story directly with one of our family lawyers. Specifically, you’ll have an opportunity to tell him or her what prompted you to seek legal advice, and how you’d like the matter to be resolved.

This is also an important chance for you to share any specific questions or concerns with the lawyer. To make the most of it, consider making a list of any such matters before the meeting. That way you can simply bring it with you, so you won’t feel as stressed about remembering everything during the actual meeting.

In addition to answering your questions, the lawyer will provide some basic information about relevant legal processes, your legal rights and so on. He or she will also ask some follow-up questions about your case. With all of the information you have provided in hand, he or she will assess your situation and advise you accordingly.

Afterwards, you’ll be able to ask any questions about the advice and information you’ve received.

Helpful paperwork

Knowing what you should bring to your first meeting with a family lawyer can also help lessen any stress or anxiety you experience before meeting a family lawyer. The type of paperwork we’ll need depends on your specific circumstances.

For example, if you are seeking legal advice about financial issues related to divorce or separation, gather some basic information about any individual and joint assets. These may include bank statements, along with documents reflecting ownership of your home, vehicles and so forth. Paperwork related to your superannuation, income and any other financial resources.

On the other hand, if you are seeking legal advice regarding parenting issues associated with separation or divorce, we’ll need different material. Bring any written records you’ve kept about relevant issues or concerns such as custody, child support, and visitation. Copies of any journal entries you’ve made or are making about how the breakdown of your marriage has affected your children will also be helpful. This will ensure that your lawyer is fully informed regarding your circumstances and concerns. It also saves a lot of legwork if we need them for the preparation of future court documents.

In either case, you shouldn’t stress over bringing everything to the initial consultation. There will be other opportunities to provide additional documents if necessary, and we will let you know what we need.

Bringing someone with you for moral support

Another question prospective clients often have prior to their first meeting with a family lawyer is whether they can bring someone along for moral support. The answer is, of course you can.

We fully understand that you are going through a stressful time, and you may feel overwhelmed. Accordingly, you are welcome to bring a friend, relative, colleague or anyone else that can help you feel more at ease. Having said that, it is important that anyone you do bring understands that anything we discuss at the first meeting is strictly confidential.

You should also be aware that you don’t have to bring anyone with you if you don’t want to. It is entirely up to you.

Cost

Perhaps the single most important concern people have about meeting with a family lawyer is how much it will cost.

For your convenience, the family law team at OMB Solicitors offers an initial half hour free consultation. This is when we’ll go over most of the matters detailed above.  At this stage, we’ll also give you a comprehensive breakdown of the costs involved.

As a follow-up, we also offer a full untimed family law consultation for $400 plus GST, where we will try to get any additional information needed to provide you with an initial letter of advice, and a detailed letter to the other party.

You can schedule an initial consultation by clicking the link on our family law page. You can also do so by sending email to: info@omb.com.au.

Dec 18
Enduring Power of Attorney

Enduring Power of Attorney: The Difference Between Appointing an Attorney ‘Severally’ Versus ‘Jointly’ in Queensland

By Articles, Wills and Estates

When people come to plan out their affairs for the later stages of their life, they are generally encouraged to nominate an enduring power of attorney.

This is a legal document used to appoint a person to make important decisions about their property and/or financial affairs should they lose capacity to do so on their own. By doing so, you can have some control over how your financial affairs are conducted once you lose personal capacity, rather than a public guardian or the courts where no enduring power of attorney exists.

The attorney you appoint can manage your bank accounts, pay bills and other debts, and sell or buy property and assets on your behalf.

Who should you appoint as an attorney?

An attorney should be a responsible person you trust, and preferably someone with an understanding of, and experience in, managing sometimes complex financial matters. They may be a family member, a close family friend, or a trusted professional such as an accountant, financial adviser or lawyer.

Importantly, you can also appoint more than one person with enduring power of attorney. When doing so, these attorneys can act:

  • Jointly and severally: the attorneys can make decisions together or separately;
  • severally: they can make decisions independently of the other attorneys;
  • jointly: the attorneys must agree on all decisions.

It’s important to seek the benefit of legal expertise when appointing more than one attorney. The people chosen need to be able to cooperate with each other and have the interests of the principal – the person who appointed them – uppermost in their mind when fulfilling the role.

Why appoint more than one attorney?

There are numerous reasons a person may appoint more than one person with power of attorney. Perhaps one or more of the people you appoint travels a lot, or perhaps you just want a ‘checks and balances’ approach that joint or several attorneys can bring to their roles in managing your affairs.

Joint attorneys, it must be remembered, need to both agree in order to act, including doing such things as attending a bank together if signatures are needed or to withdraw funds from the principal’s account. This setup can act as a safeguard that both will act without self-interest when it comes to managing your affairs. Conversely, jointly appointed attorneys can sometimes lead to conflict and inconvenience, particularly where, for example, two siblings who do not get along hold the roles and cannot agree on the details of managing your financial affairs, or are not always available to make joint decisions.

Attorneys appointed jointly and severally can make decisions independent of each other, which can lead to mistrust and conflict if there is disagreement on how each of them has acted. Suspicion by one attorney of financial abuse by another could – in a worst case scenario – lead to litigation in order to stop one of the parties acting any further.

There is also the issue of appointing a person who is older or of similar age to you, who may either die or lose capacity before you do. In the case where one of your attorneys dies or cannot continue in their role, what happens next depends on how the attorneys were appointed. Where attorneys were appointed jointly and one of them is either unwilling or unable to carry out the role, the enduring power of attorney will automatically cease. One of the advantages of appointing attorneys jointly and severally, or severally, is that the power continues despite one of them being unable to act. The other attorneys continue to make decisions under the power on your behalf.

When does an enduring power of attorney end?

People of any age can make an enduring power of attorney so long as they have the mental capacity to understand the nature and effect of the power when they sign the document.

An enduring power of attorney ends:

  • By revoking it (so long as you have mental capacity at that time);
  • at the time of your death;
  • when only one person was appointed as your attorney and dies or is unable to continue;
  • when you have appointed two or more attorneys to act jointly and one of them dies or can no longer act as your attorney.

Enduring power of attorney may also end due to bankruptcy and other legal reasons. In these cases legal advice should be sought.

If your enduring power of attorney has ended and you no longer have the mental capacity to make a new one, the Guardianship Tribunal may be able to make orders so the enduring power of attorney can continue. For example, if your enduring power of attorney has ended because a jointly appointed attorney has died, the Tribunal has the power to reinstate the enduring power of attorney so that it can continue in your best interests.

The importance of legal advice

Appointing an enduring power of attorney is an important decision to be made as part of the estate planning process. As we’ve outlined here, there are pros and cons to empowering more than one person to be an attorney who can manage your financial affairs.

Consulting experienced estate planning lawyers with years of experience in this area of the law is a wise course of action. At OMB Solicitors we can expertly advise you on the benefits and the potential pitfalls when it comes to enduring power of attorney, particularly the issue of appointing more than one attorney. Contact our Gold Coast lawyers on (07) 5555 0000.

Dec 13
Sun Rise Images With Girl

What Effect Does Domestic Violence Have on a Property Settlement

By Articles, Family Law

As police, advocates, social workers, and mental health professionals all can attest, domestic violence takes a tremendous toll on victims. In addition to lasting physical and emotional scars, it often creates financial hardship as well. In some cases, this is because the physical injuries inflicted by perpetrators render the victim incapable of working or unwilling to do so. In some cases, the victims can and do work, but the abuse they’ve suffered affects their job performance. This in turn can lead to disciplinary action or termination. Finally, domestic violence can also make it harder for the victim to find gainful employment.

Even so, the ways in which domestic violence affects property settlements in divorce can vary greatly depending on the specific circumstances of each case. In this article, we’ll take a closer look at this complicated, yet important issue.

A benchmark case

The Full Court of the Family Court set legal precedence for the consideration of domestic violence as a factor in property settlement claims with its ruling in In the Mar­riage of Ken­non. In this particular matter, the divorcing couple had been married for four years and did not have any children.

The court ruled in pertinent part: “… where there is a course of vio­lent conduct by one par­ty towards the oth­er dur­ing the mar­riage which … [has] had a significant adverse impact upon that par­ty’s con­tri­bu­tion to the marriage, or, … [has] made his or her con­tri­bu­tions significantly more ardu­ous than they ought to have been, … [this can be tak­en] into account in assess­ing the par­ties’ respec­tive con­tri­bu­tions with­in s 79.“

The court added that there must be evidence that the vio­lence “occurred during the course of the mar­riage and had a dis­cernible impact” on the victim’s contributions in order to be “relevant.”

When all was said and done, the court did amend the property settlement in the wife’s favour because of the extent to which domestic violence affected her contributions. However, the specific percentages associated with the adjustments are unknown.

Because the decision set a legal precedence, adjustments to property settlements based on similar findings are now called “Kennon” adjustments.

Quantifying the effects of domestic violence

In ensuing cases, the court has tried to calculate values for adjustments based on the impact that the domestic violence had on the victim’s contributions. In a case styled as Kozovs­ka & Kozovs­ki, the court adjusted the assets meant for the wife by 10 percent. They did so  based on the domestic violence she endured at her husband’s hands,  and the resulting impact on her con­tri­bu­tions. In another case, Dixon & Dixon, the assets allocated to the wife were adjusted by 20 percent. This adjustment was also attributed to the impact the domestic violence she endured had on her contributions.

Another case in point

For clarification, let’s consider another case.

In this particular matter, the husband and wife were both in their 40s and had been together for nine years. The wife had two kids, both of whom were teenagers, from a prior relationship. The couple’s asset pool consisted of a house valued at $470,000. Both parties claimed that they made initial contributions, although the husband disputed his wife’s assertion on this point. The parties also disagreed on the use and the amount of compensation received after the husband was injured in a serious motor cycle accident.

However, the real issue at the crux of the matter was the wife’s assertion that she and her children were victims of ongoing violence throughout the relationship. The husband denied any physical violence occurred. After the couple separated, the husband breached the Intervention Order his wife sought because of the domestic violence. He ultimately went to prison for more than three years for violating the Intervention Order and other offences. Soon after he got out of prison, he again breached the Intervention Order by calling and threatening his wife.

Based on the evidence presented, the court awarded a 7.5 percent adjustment to the wife. This was because the domestic violence perpetrated by her husband made it harder for her to continue contributing to the household. The court also made a 10 percent adjustment in the wife’s favour because she was solely responsible for caring for the kids, and the effects of the abuse limited her ability to work.

There’s always an exception…

Of course, there are always exceptions to the “rules.” Take the matter of Bel­more & Bel­more , for example. In this particular Family Court case, the husband and wife had been married for more than 30 years and had several children. Of significance here is that the husband was convicted of a serious assault on his wife and punished accordingly, and there was evidence of additional domestic violence. Even so, the court did not feel it could justify an adjustment in favour of the wife based on Ken­non.

Here’s why. The most seri­ous assault, which result­ed in the hus­band’s incar­cer­a­tion, occurred after he and his wife separated. Only violence that occurs while the couple is together can be used as the basis for a claim for a property settlement adjustment based on Ken­non.

Clearly, this is an important but complicated issue. If you have been the victim of domestic violence, you are getting divorced and you are concerned about how the violence could affect your property settlement, getting the proper legal advice is essential. Contact our Family Lawyers and Gold Coast lawyers by phone, email  or through our website, today.

Nov 21
ARE YOU LEGALLY PROTECTED FROM BUSHFIRES?

Are You Legally Protected from Bushfires?

By Articles, Property Law

This month Bushfires are raging across Queensland and destroying lives, homes and valuable properties along the way. The current situation across both Queensland and New South West is dire, with 50 bushfires burning in Queensland and 60 burning in NSW. At least three people have lost their lives to the fires and many others missing and injured. There are over 150 homes destroyed by blazes. Experts have warned that “this disaster is far from over and the worst may be yet to come with summer ahead.” With Christmas holidays just ahead, many Aussies may also travel for holidays, leaving their properties vulnerable to potential risks.

In this article, OMB Solicitors would like to discuss some of the important legal preparation Queenslanders should do.

Insurance

  • Make sure your insurance is up to date, and has the right cover for fire and flood.
  • If you are letting your property, you’ll need to let your insurance company know you’re no longer living there and arrange landlord’s insurance. Your tenant will probably want to get contents insurance and many companies require door and window locks to be of a certain standard.
  • If you are letting your property for short-term rentals (e.g. Airbnb, Stayz, Wotif etc.), you must check if your policy is compatible for this purpose. Certain policies may also distinguish between professionally managed properties or self-managed properties.
  • Consider obtaining Insurance advice about securing life, TPD and trauma insurances.
  • If your property gets damaged, be prepared to lodge an insurance claim soon after the event.

Emergency contacts

  • Keep a list of emergency contacts you may need for dealing with recovery from a disaster.

Important Documents

  • Prepare or update your Will and Enduring Power of Attorney. We recommend seeking proper legal advice from us when it comes to setting up a Will and/or Enduring Power of Attorney.
  • Prepare an important documents kit, including a description of your home and a list of your valuable belongings. Compiling passwords and keeping this with your estate planning documents is also a handy hint.

In the event of a disaster you can contact Gold Coast Lawyers Team at OMB Solicitors at 07 5555 0000 for legal advice. We are here to help.

Aug 29
Juliette Nairn Gold Coast Lawyers

What the Draft Body Corporate Regulation Means for Bodies Corporate in Queensland

By Body Corporate, Videos

After nearly six years of consultation, the first of several draft regulations have finally been prepared and the last round of community involvement has commenced. In this video, OMB Solicitors, Partner Juliette Nairn discusses key features of the draft regulations.

A summary of the draft regulations can be accessed here.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Jul 10
Thinking a man

10 Ways to Improve Your Debt Recovery Process

By Articles, Ligitation
One of the most frustrating aspects of running a business is not being paid on time for the goods and services you provide. Customers who don’t pay on time eventually cost your business time and money in chasing them to settle their bill, not to mention the impact on your cashflow.

While businesses in this situation certainly have legal rights that allow them to take action to collect from debtors, there are also many pre-emptive things a business can do to both reduce the prospect of indebted customers, and improve your internal processes for recovering debt. We’ve listed 10 essential points any business should consider when approaching the area of debt recovery.

  1. Know who your customers are

Many of the problems with customers who struggle to pay stems from a lack of initial due diligence on the part of the business that extends them credit. By first checking publicly available company information and otherwise gathering as much information as possible about the business you’re lending to, you can effectively ‘screen’ those who are likely to be able to repay from those who are not… and hopefully reduce repayment problems.

  1. Offer customers incentives for early or instant payment

A decision to offer a debtor a discount or some other incentive to pay you back early or on time obviously needs to be weighed against the costs of chasing them for payment. Many businesses will prefer to be paid back at a slight discount, maintaining cashflow, rather than spend time and effort chasing debts. If discounting payment is not an idea you wish to entertain, other incentives such as offering certain customers exclusive products or access can also encourage on-time payment

  1. Have clear, transparent and accessible contracts and terms

While it seems obvious, many businesses use contracts that are either too vague on key details, or alternatively too heavy with legalese for those to whom they extend credit to understand. The guidance of a legal representative with experience in debt recovery is often essential in helping a business draft a succinct, clear and transparent document which sets out payment terms, methods of payment, time limits, manageable credit limits and penalties for non-payment by those they extend credit to. This can avoid any ‘they said-he said’ disputes later, and prove crucial if legal action for debt recovery is later required.

  1. Provide different options for repayment

By diversifying the methods by which customers can pay, you can encourage them to honour their obligations rather than ignore or delay them. A payment plan or instalments might be better than not getting payment at all, but obviously this decision will depend on the size of your business and your cashflow position.

  1. Make someone in the business a ‘debt recovery officer’

Many businesses make the mistake of having more than one person responsible for chasing up late or non-paying customers. This can lead to confusion and duplication, particularly in larger businesses with many clients. Ideally there is one person, or a dedicated team leader, responsible for debt collection, streamlining the interaction of the business with debtors. In smaller businesses, if this seems too big a job for one person, external experts can be employed. Many law firms now offer specialist debt recovery services.

  1. Ensure there is a systematic invoicing process where you follow-up on late payments

Following on from point 5, a debt recovery officer should be managing a systemised process of invoicing and follow up of late payments. Whichever way this is done, the process should be accessible to all those involved in transactions between the business and clients. The process should also be clear and transparent for the customer, so they are aware of what the follow-up contact is in relation to.

  1. Communicate verbally with the debtor

This point follows on from 5 and 6 but again, also applies to anyone in the business who deals with customers. In these days of email and online portals, it’s easier than ever for customers who owe money to ignore or put off requests for payment until it suits them to pay. Sometimes a good, old-fashioned chat on the phone between, say, the debt recovery officer and the client, can lead to quicker payment. There’s still no substitute for dealing with a real human.

  1. Insist on a written payback commitment

While there may be a contract in place, and there have been polite requests for payment and even a friendly chat on the phone, you should also consider a written ‘payback’ commitment presented to the debtor when the debt becomes payable. Here the debtor acknowledges the debt, explains why it hasn’t been paid on time and promises to pay it back by a specific date in a return email or letter. This document, like a contract, will also assist if later legal action is required for non-payment.

  1. Keep a record of all contact details and communication with the debtor

A comprehensive and accurate record of all the ways the business has contacted the debtor should be kept. These days, various software tools make this easy to do. A record of the contact made with the debtor will be vital if legal action needs to be commenced against the debtor.

  1. Stop the account and take legal action

Obviously there comes a point where a business has tried everything to get a customer to pay, without success. At this stage the logical course of action for the business is to cut off service and/or credit to the client and consult a lawyer about the next steps to recover the debt/s.

OMB Solicitors has many years of experience in advising and guiding businesses on debt recovery actions. If any of the issues raised in this article provide you with questions or concerns, contact OMB Gold Coast Lawyers today on (07) 5555 0000 or info@omb.com.au.

Jul 04
video will gold coast

Can I Do a Video Will?

By Articles, Wills and Estates

Smartphones have put a video camera in the pocket of nearly every person you see, with widespread and profound impacts for various sections of society, including security, surveillance and in particular, the law.

In recent years the prevalence of mobile recording has resulted in a number of court cases debating whether a ‘video will’ made by someone who later passes away can be valid and enforceable. In Australia, for a document to be recognised as the will of a deceased person it must be in writing and signed by the testator (the will-maker) in the presence of two or more witnesses present at the same time. How then, can a video recording of a will be valid?

While the law is often slow to adapt to the legal impacts and implications of new technology, the courts have set down a number of important principles when it comes to video recording your will and more generally, what are termed ‘informal’ wills.

A recent case example

The case of Radford v White decided in the Queensland Supreme Court in 2018 provides a good recent example of this specific issue.

In this case, Radford was the de facto partner of Jay, a 39-year-old man who bought a new motorcycle. Before he picked up the motorcycle, Radford encouraged Jay to record a video in which he directed what he wanted to happen with his assets should he pass away. In the recording, Jay said the majority of his assets should go to Radford and that nothing should go to his “soon to be ex-wife”, White.

Later that day, Jay had a road accident on his new bike, sustaining serious injuries including a severe head injury. Although later discharged from hospital, 14 months later he passed away from an overdose of prescribed painkillers. Radford made an application to the court seeking an order that the video recording Jay had made be considered a valid will, while Jay’s ex-wife, White, opposed Radford’s application.

The court decided in Radford’s favour that the video recording did form Jay’s will. It found that:

  • the video recording was a ‘document’;
  • the document purported to state the testamentary intentions of Jay; and
  • Jay demonstrated an intention to complete the formalities of a will at a later date by stating in the video that he’d “fill out the damn forms later”.

The decision in Radford v White joined a number of other cases where it was found a document other than a written, signed and witnessed will can operate in that capacity for the deceased, including:

  • notes on a mobile phone (Re Yu [2013]);
  • Microsoft Word documents (Yazbek v Yazbek [2012]);
  • handwritten documents not signed or dated (Public Trustee v New South Wales Cancer Council [2002]);
  • letters to solicitors (Permanent Trustee Co Ltd v Milton (1996));
  • instructions to solicitors (Saltmer v Renrick Lawyers Pty Ltd [2018]);
  • audio recordings (Re Estate of Carrigan (dec’d) [2018]).

What are the risks of video recording your will?

Despite the decision in the court cases above, it’s not advised you rely on a video recording of your will or other informal means in order to have your wishes carried out after your death. A properly executed written will remains the surest way to ensure your instructions are adhered to when you’re no longer here.

By making a video will, you leave it in the hands of the courts to determine whether it is a valid expression of your wishes. If the court decides the recording is not valid (and there is no other will), you could be declared intestate and your assets and belongings be distributed by the state without taking account of your wishes.

In determining the validity of an informal will such as a video recording, a court will take into account:

  • That the video is an actual record of the testamentary wishes of the testator and must clearly address the disposal of their property and assets, in contemplation of death.
  • That the video shows an intention, without anything more, to operate as a will. This means it will be likely invalid if it is referred to in the recording as a draft or a letter of instruction, for example. It’s wording cannot also consist of mere wishes or requests.
  • That the video be a ‘document’. This is the easiest element to establish given courts have previously found that any disk, tape, soundtrack or other device in which sounds are embodied and also film, are considered a document.

It should be noted that the onus of proof that the video is the will of a ‘capable’ testator lies with the person (usually one of the beneficiaries) claiming it is the deceased person’s will. The court may read direct statements and notes by the deceased, and evidence about when and how the video was recorded, to make its decision.

Also note that if a statement in a video recording which purports to be the final will of the deceased conflicts with the terms of a written will in their name, the written version will prevail.

In conclusion

While there are judgments in Queensland and some other states which have supported the validity of informal wills in the form of video recordings, preferring this format to that of a written, properly executed will remains ‘Russian roulette’ in the eyes of legal experts in estates and wills. There is no guarantee a court will come to the same conclusion about a video will in a case based on similar facts.

In the end, to guarantee your instructions are carried out as you want them to be after your death, it’s best to make a proper will with the advice of legal experts experienced in estates and wills, such as OMB Solicitors. This way you don’t leave it to chance that your will is legally enforceable, avoiding a potentially costly mess for your beneficiaries. If any of the issues raised in this article provide you with questions or concerns, contact Gold Coast Lawyers today on (07) 5555 0000 or info@omb.com.au

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