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What do Quinn & Scattini do for a buyer?

Why should I use Quinn & Scattini?

There are three good reasons to use Quinn & Scattini:

  1. Service - our conveyancing team are experienced and in tune with the tight time frames and demands that are part and parcel of buying and selling property. Our conveyancing team are easily contactable to guide you through your transaction. Duncan Murdoch, a director at Quinn & Scattini, oversees the conveyancing team and can draw on 18 years experience as a property lawyer.
  2. Cost - we offer a fixed fee service for most residential transactions with no hidden costs. We are happy to give you an obligation free quote up front by phone fax or email.
  3. Location - we have 10 conveyancers located across our eight offices who can assist you with your sale or purchase meaning that there will be someone in your locality who can assist you with your sale and purchase.

I believe I have been unfairly dismissed. Can I make a claim for unfair dismissal against my Employer?

Federal system employees who have had their employment terminated by their employer may apply to the Australian Industrial Relations Commission for relief on the grounds that the termination was harsh, unjust or unreasonable ('unfair dismissal').

In determining unfair dismissal the AIRC may consider such things as:-

  1. Whether there was a valid reason for the termination related to the employees capacity or conduct.
  2. Whether the employee was notified of that reason and given the opportunity to respond.
  3. Whether the employer has been notified of any unsatisfactory performance.

Currently unfair dismissal does not apply to workers who are:

  • employed by a company with less than 100 workers,
  • workers employed on a seasonal basis,
  • workers who are on probation,
  • workers engaged under a Contract for employment for a specified period or tasks,
  • workers serving a 6 month qualifying period, or
  • workers who were dismissed for a general operation reasons.

From 1 July 2009 the Fair Work Act 2009 changes the above exemptions. All employees can bring an unfair dismissal claim provided they have completed the minimum employment period (i.e. 12 months for small business employing fewer than 15 employees and 6 months for other employers).

However, employees earning over $100,000.00 or who are not covered by an Award or Enterprise Agreement will be exempt from unfair dismissal claims.

Applications will be made to Fair Work Australia within 14 days from the dismissal (as opposed to 21 days under the current legislation).

State system employees can file an application for unfair dismissal with the Queensland Industrial Relations Commission.

A dismissal is unfair if it is for an invalid reason (i.e. the reason for dismissal is unfair or discriminatory) or if it is harsh, unjust or unreasonable (i.e. the dismissal procedure is unfair). Invalid reasons include:-

  1. Temporary absence due to illness or injury.
  2. Because an employee filled a complaint against the employer.
  3. Discrimination.
  4. Due to membership or non-membership of a union.
  5. Because the employer refuses to negotiate or make a certified agreement.
  6. Because an employee or their spouse is pregnant or has given birth.

The unfair dismissal provisions do not apply to the following employees:-

  1. Short term casual employees.
  2. Apprentices or trainees.
  3. Employees serving a probationary period.
  4. Employees whose annual wages are more than $101,300 or were not employed under an Award or Agreement.
  5. Employees engaged for a specific period or task.

Please note that the above advice is general in its nature and that you should obtain legal advice specific to your circumstances.

Case note - employment entitlements

We recently acted for a person who worked for the same national company ("the Company") for 20 years. Our client was terminated and came to us for advice.

The Company argued that our client was an independent contractor because they paid an hourly rate of pay for our clients' services to our clients' own company.

We argued that our client's working relationship with the Company had features of an employment relationship because of (but not limited) to the following:

  1. Our client did not work for anyone else in the 20 years
  2. The Company directed the way our client undertook the work
  3. The Company supplied most of the tools and equipment to our client to perform the work
  4. Our client wore the uniform of the Company
  5. The work was performed on the Company's premises
  6. Our client could not delegate tasks to third parties
  7. Our client was an integral part of the Company's business

Our client threatened legal action for unpaid employment entitlements, including superannuation, annual leave and public holidays (up to 6 years due to statute of limitations) and long service leave.

The matter was settled out of court and our client was very satisfied to have received a significant payment for his entitlements (about 3 times what he was originally offered).

I have found out that my employer has been underpaying me. What can I do?

If you have been receiving less pay than the minimum rates of pay prescribed by a State or Federal award then you may be entitled to make a claim against your employer.

Underpayment of wages often occurs when employees are entitled to penalty rates, allowances or loadings provided by an award.

There are a number of options that an employee has depending on whether they are Federal or State system employees.

Federal system employees can contact the Workplace Ombudsman to investigate a matter on their behalf or initiate their own legal action through the appropriate Courts.

State system employees can lodge a claim at the Queensland Industrial Relations Commission (in certain circumstances) or initiate their own action through the appropriate Courts.

I have heard that there are different laws relating to employees depending on whom they work for. I do not understand what rights I may have. Can you please advise?

As an employee you will either be covered by the Federal system or a State system.

Employees covered by the Federal system include those employed by;-

  1. Constitutional corporations (generally Pty Ltd companies).
  2. Most Victorian employers and all employers in the ACT and NT.
  3. Commonwealth Government and Commonwealth Authorities.
  4. Employers who employ flight crews, maritime employees or waterside workers.

The Fair Work Act 2009 applies to Federal system employees but some of the provisions of the previous legislation, the Workplace Relations Act 1996, continue to apply.

Employees covered by the State system include those employed by:-

  1. Sole traders, partnerships or trusts.
  2. State Government public sector.
  3. Australian corporations whose main activity isn't trading or financial.

In Queensland, the Industrial Relations Act 1999 applies to the State system employees.

I am a tradesman who has their own ABN but have been working for the same person / company for a number of years. Am I an employee or an independent contractor?

Whether someone is an independent contractor or an employee is a matter of fact to which one applies the law.

The current law with respect to independent contractors and employees is clear but the facts vary from case to case which leads to difficulties in where you draw the line and classify the relationship as one of an employee as apposed as to one of an independent contractor.

Essentially the less control the employer/ principal has over a worker the more likely the worker is to be classified as a contractor.

In a situation where you have been working for the same person or company who exercises a considerable degree of control over how you perform your work then you may be considered an employee.

Employees must be paid certain minimum entitlements including superannuation, annual leave and long service leave (if applicable). If you have not been paid these then you should seek legal advice on your rights to claim employment entitlements from your employer.

What happens if things go wrong with my property transaction?

Most transactions will go smoothly but on occasions things may arise that you had not expected. We can guide you through these problems drawing on the experience that we have had in resolving these problems. This can include either enforcing your rights under the contract or seeking ways for you to get out of the contract. As a last resort our litigation team that can assist you should your rights have to be enforced through the courts.

Who do Quinn & Scattini act for?

We act for a broad spectrum of clients from mums and dads to small/medium enterprises to large developers and government departments.

Our experience in working for this cross section of clients allows us to not only understand the needs of our clients but to have an understanding and anticipate what the other party to the transaction might be seeking whether it is explicitly stated  or sought by a hidden agenda.

What property transactions do Quinn & Scattini handle?

Quinn & Scattini handles a variety of property transactions which include:-

  1. Development contracts. 
  2. Option Agreements/Put and Call Option Agreements.
  3. Broad acre developments.
  4. Strata title developments.
  5. Easements, covenants and registration of survey plans.
  6. Commercial property sales and purchases.
  7. Due diligence enquiries.
  8. Joint venture agreements.
  9. Leases.
  10. Consideration of GST issues.
  11. Financing projects.

For further explanation of the transactions mentioned above, please refer to the property & development page.

Why should I use Quinn & Scattini for my property transaction?

There are three good reasons to use Quinn & Scattini

  • Service - our property team are experienced and in tune with the tight time frames and demands that are part and parcel of property transactions.
  • Cost - we can give you an upfront assessment of the likely costs involved in handling your transaction. 
  • Location - we have property solicitors that service our eight offices who can assist you with your property transaction. We can attend your offices if this is more convenient for you.
  • Experience - our team is headed by partner Duncan Murdoch who has around 19 years experience in property law.   

If I plead guilty to an offence will a conviction be recorded?

It is necessary to make submissions to the court as to why a conviction should not be recorded. The court needs to be convinced that recording a conviction would cause difficulties with you obtaining future employment and/or travelling overseas.

Should I speak to police if I have been arrested?

It's best to get legal advice before participating in an interview with police. Our office hours are 8.00 am - 5.30 pm and someone in our criminal law team will be available to take your call. If you require assistance outside these hours you can contact us on 0419 173 980.

Do I need a lawyer to represent me if I have been charged with a traffic offence?

Some people believe that lawyers are a waste of money and feel they can represent themselves. However, being disqualified from driving can cause significant concern for most people, especially for those who need their license for work. We are trained practitioners who appear in court on a daily basis and know the law well. We can ensure your case is properly put to the court and make the appropriate submission to make sure you get the best result. Having us assist you is also likely to ease the stress that can be associated with appearing in court.

What is the likely penalty for driving unlicensed?

You will be disqualified for driving for 1 - 6 months and ordered to pay a fine.

What is the likely penalty for disqualified driving?

First time offenders will usually get disqualified from driving for a period of 2 - 5 years and have to pay a fine. However, courts are now taking this charge much more seriously and repeat offenders can face imprisonment. The court will treat it more seriously if the client is found driving home from the court after the initial disqualification or if the offence is committed in the first few months of the initial disqualification. The offence also becomes more serious if it is coupled with drink driving.

I was on a good behaviour license and now I have accumulated my demerit points and been issued with a notice of suspension. Can I apply for a work license?

To apply for a special hardship order you must;

  • not have lost your license in the past 5 years,
  • be a fit and proper person to continue to drive, having regard to the safety of other road users, and
  • prove that having your application refused would cause extreme hardship to you or your family by depriving you of you're means of earning a living.

Can I get a work license if I have been charged with drink driving?

To apply for a work license you must;

  • have an open Queensland license or if you are over 25 you are still eligible if you are on a provisional license, 
  • not have been disqualified from driving within the last 5 years,
  • have a blood alcohol concentration reading of less than 0.15%,
  • be able to prove to a court that you are a fit and proper person to hold a work license, and
  • be able to prove to a court that without your license you would lose your employment and as a result suffer extreme financial hardship.

It is necessary to complete affidavit material and have the matter heard before a Magistrate.

What is the likely penalty if I get caught drink driving?

Penalties vary, but the most common result is that you will be disqualified from driving for a period of time and also be required to pay a fine. Where you have been charged with drink driving previously, imprisonment is a possibility in some circumstances.

What if I am already in a lease and require advice?

Your Quinn & Scattini leasing lawyer will be able to review your current situation and advise you of your available choices, taking into account your lease, circumstances and the general law.

What legal costs are involved?

For landlords we quote a fixed fee for lease preparation and attending to the supporting documentation and other matters. If your lease is non-retail a landlord can pass lease preparation costs on to the tenant.

For tenants we quote a fixed fee for reviewing the lease and advising you on the important terms and any areas of concern. You must then decide what clauses (if any) you wish to negotiate with the landlord. We will usually issue a second bill at the end of the matter which is based on the number of changes you wish to request and the amount of work required to complete the negotiations.

If your premises are to be "retail" under the Act the landlord will be prevented from charging lease preparation costs to you.

While costs is an important factor to consider when commencing business with a new lease, we submit that money spent obtaining the best possible lease in your circumstances can be a source of significant advantage in the future. For example, a good lease can:-

  1. improve the value of your business or land when you wish to sell;
  2. minimise your long-term costs;
  3. minimise the potential for lease disputes; and
  4. ensure that you are in the best possible position in the event of tenant default.

Important Terminology

  • Lessee: Otherwise known as the 'tenant'.

  • Lessor: Otherwise known as the 'landlord'.

  • Assignment: The tenant handing over the lease to a third-party tenant. Assignment most commonly occurs upon sale of the tenant's business to that third party. Assignment of a lease will require the landlord's consent.

  • Assignor: The tenant who wishes to assign his/her lease to a third party.

  • Assignee: The third party who takes over the tenant's obligations under a lease. Usually the business purchaser.

  • Outgoings: The landlord's costs of the building and/or the land which are passed onto a tenant, often as a proportion of the tenant's share of the lettable area.

    For example; a shopping centre may have annual outgoings of $1 million and a tenant's proportion of a lettable area may be 1% of a shopping centre. The tenant would have to contribute $10,000.00 to the landlord's outgoings per year.

  • Net Lease: A lease where outgoings must be paid in addition to rent.

  • Gross Lease: A lease where outgoings are included in rent.

  • Option: A fixed renewal period exercisable by the tenant if certain criteria are met.

    For example if the lease has a 3-year term with a 3-year option the tenant will usually be able to exercise its option by written notice between 9 and 6 months before the end of the lease.

    Option-exercise timeframes are usually time-critical.

    In a "Retail" lease the landlord has an obligation to remind the Tenant of its option-exercise deadline.

If the tenant breaches the lease, what is tenant's potential liability?

A tenant (and its guarantor/s if any) can be sued by the landlord for breaching a lease.

The "high water mark" of the tenant's potential liability is the sum of all of the rent that would be payable until the end of the lease. For example if the tenant breaches a 3 year lease at the end of the first year and the rent is $100,000.00 per annum; the tenant could be sued for $200,000.00 plus the landlord's other costs.

Depending on the circumstances the landlord could be required to mitigate (reduce) its loss by finding another tenant.

It is not common knowledge that if the tenant assigns the lease to a third party (for example upon selling the tenant's business) the old tenant will often remain liable for any subsequent default of the new tenant. This "assignee's liability" can be modified by the Act or by agreement depending on the circumstances.

Given the enormous financial consequences of breaching a lease it is important that both landlord and tenant get proper lease advice and take all available steps to minimise their risk.

For example, it is important that a landlord obtains a suitable level of security and has a workable lease document in the event of a tenant's default.

What important factors should I consider when negotiating a lease?

The following are examples of important factors that the landlord and tenant must consider when negotiating their lease:-

  • Term & Options - The mix of term of options (combined with other factors such as rent review) will be an important factor for landlord and tenant.

    A tenant will want the flexibility of a shorter term plus options while the landlord will want certainty in relation to the tenant's tenure and to ensure that the rent increases at an appropriate level throughout the life of the lease.  

  • Rent Review - The 3 most common rent review methods are Consumer Price Index (CPI), Fixed Increase and market review.
    CPI market review will be variable depending on economic trends.

    Fixed increase will give certainty but may not be reflective of economic and market conditions.

    Market review allows the parties to adjust the rent in accordance with local conditions but can be a time-consuming, expensive and uncertain process.

    If the lease is "Retail" the tenant may have the right to obtain an early market review (before exercising its option). This can be an economic and business planning advantage for the tenant.

    Many leases have a CPI or Fixed review every year except for the first year of each option period which will normally have a Market review.

  • Security Bond/ Guarantees - A landlord will want the maximum available amount of security from a tenant to protect against default by the tenant.

    It is common for a landlord to demand a security bond or bank guarantee to the value of between 3 and 6 months rent plus other costs.

    If the tenant is a Pty Ltd company the landlord may ask for personal guarantees from the Directors. A personal guarantee will put the assets of the Directors at risk.

  • Fit out matters - The lease will contain important clauses regarding the tenant's initial fitout, further works during the lease and the tenant's requirements at the end of the lease.

    As fitting-out and reinstating premises can be expensive undertakings open to dispute it is important to ensure the parties' intentions are properly recorded in the lease.

  • Other matters - Your leasing lawyer will be able to discuss with you other important factors that apply to your situation.

What are the main steps when parties enter into a lease?

The main steps when a landlord and tenant enter into a lease are set out in the table below:-

  1. Preliminary negotiations - Tenant and letting-agent/ landlord engage in preliminary negotiations regarding the availability of premises, the proposed rental amount, term and options etc.

  2. Signing the "Agreement to Lease" - The landlord or its agent prepares a 2-4 page "Agreement to Lease" document setting out the important terms of the lease which landlord and tenant sign.

    This is usually prepared in anticipation of a formal full lease being prepared and signed.

    We recommend that you obtain legal advice on an "Agreement to Lease" before you sign it.

    Depending on the wording you could find yourself already bound to a Lease before the formal document is even produced.

    Likewise, a landlord could find itself bound to grant a lease to a tenant earlier than intended.

  3. Landlord submits draft Lease - The landlord's solicitors will provide the tenant (or its solicitor) with its draft lease and other requirements for review.

    The tenant's solicitor will review the lease at this stage and advise the tenant of important clauses, including those that may require further negotiations.

  4. Negotiation phase - The tenants' solicitor advises the landlord's solicitors of the changes the tenant requires to the lease.

    The landlord's solicitor advises what requested changes are acceptable and what changes are rejected.

    Negotiation continues until there is an agreed form of lease.

    If the lease is "Retail" the landlord will also need to submit a "Lessor Disclosure Statement" which applies to the final version of the lease.

    The Tenant will also need to meet its disclosure obligations under the Act.

  5. Execution and finalisation of Lease - The tenant signs 3 copies of the lease and submits these to the landlord (along with the landlord's other requirements - e.g. insurance, security bond etc.).

    The landlord then signs the lease in triplicate and returns one copy of the tenant.

    A Landlord will often grant access to the premises at this stage.

  6. Register Lease - The lease is registered with the Land Titles Office.

    Often this will require preparation of a Survey Plan in registrable form at the tenant's cost.

    Registration of the lease is recommended to protect the tenant's interests, although it is not compulsory.

Is my lease a "Retail Shop Lease" any why does that matter?

A lease will be a "Retail Shop Lease" if it meets the criteria set out in the Retail Shop Leases Act ("the Act").

If you are a retail tenant you will gain additional rights and protection under the Act providing that certain criteria are met.

If you are a landlord you have a number of important obligations and limits under the Act which, if breached, can result in severe consequences (e.g. the tenant walking away in the first 6 months of the lease, your annual rent increases being ineffective, etc.).

Your Quinn & Scattini leasing lawyer will be able to assist with these important matters.

Why should I engage a lawyer to assist with a new lease?

The average lease is between 30 and 70 pages long. Some of the lease clauses will be relatively standard while other clauses may be unusual and detrimental to you.

In addition, many short "standard form" leases are unsuitable for the parties' requirements and do not contain important elements.

Your Quinn & Scattini leasing lawyer has experience with many leases and will be able to explain to you the important clauses and advise you of any undesirable clauses which should be amended.

If you have any specific requirements your lawyer can ensure that these are inserted into the lease.

Your leasing lawyer can engage in negotiation on your behalf as to any changes that you require and also assist in the finalisation of the technical requirements of your leasing relationship.

What is a Lease?

A lease is a detailed document setting out the relationship between landlord and tenant.

A lease will contain key information such as the amount of rent and the length of the term (and any options).

The lease document will also contain clauses that deal with other events such as default by the tenant, installing & removing the fit out, etc.

Conclusion

  1. There are a number of issues relevant to franchising. We have addressed a few above. To minimise your risk we encourage you to undertake as much due diligence as you can and seek professional advice.
  2. Quinn & Scattini has extensive experience within the franchising industry. We also can provide you with a breadth of advice in a number of other practice areas complimentary to franchising.
  3. We highly recommend you contact one of our franchising lawyers to get appropriate advice before entering into any Franchise Agreement.

What other issues should I consider?

  1. Make sure the term of any premises lease you enter into correlates with the term of the Franchise Agreement.
  2. If there is a provision in the premises lease allowing the Lessor to relocate the premises within a Centre, make sure the Franchise Agreement also allows for the potential for relocation.
  3. There is no obligation set out in the Code requiring the Franchisor to offer an option or renewal term within a Franchise Agreement. Accordingly, if you require an option term then you need to make sure provision is made for this within the Franchise Agreement.
  4. In addition to the Franchisor's obligations under the Code, the Trade Practices Act 1974 (and the State Fair Trading legislation) provide broader consumer protection mechanisms such as in relation to misleading & deceptive conduct, false representations or unconscionable conduct and the like.
  5. Make sure the Franchise Agreement is clear as to what are the Franchisee's expected performance obligations.
  6. You should ideally obtain and review the Operations Manual and any related manuals prior to entering into the Franchise Agreement. At the very least before the cooling off period expires in case there is material in those manuals adverse to you.
  7. Make sure that your territory is exclusive and large enough geographically so that franchisees with adjacent territories do not encroach on your territory.
  8. Make sure the Franchise Agreement does not allow the Franchisor to sell directly into your territory in competition with you.
  9. Make sure you undertake proper due diligence, read the Disclosure Document, contact existing franchisees and gauge their opinion of the franchise system. Ultimately it is your risk and if proper due diligence is not undertaken you may lose not only the franchised business but risk bankruptcy or liquidation if the business fails.

I have heard of the term "Churning" – what does it mean?

In this situation a franchised business fails, the Franchisor gets rid of the existing Franchisee and either buys it back itself and then re-sells or just re-sells. The problem is this cycle repeats itself over and over again. A franchised business that is being sold over and over is a sign of:

  1. Either poor management of the Franchisor in not getting the right Franchisee,
  2. A deliberate strategy of the Franchisor just to increase profits,
  3. The target market or demographic for the franchised business in that territory not matching up with the product/service, or
  4. Some other reason for poor performance. Do your due diligence and don't get caught.

If I do terminate within the cooling off period do I get a refund of money I may already have paid to the Franchisor?

  1. If the Franchisee terminates during the cooling off period, the Franchisor must, within 14 days, return all payments made by the Franchisee to the Franchisor under the agreement.
  2. However, the Franchisor may deduct from the amount paid, the Franchisor's reasonable expenses if the expenses or their method of calculation have been set out in the Franchise Agreement.

If I do enter into a Franchise Agreement is there a cooling off period?

Yes, under the Code a Franchisee may terminate a Franchise Agreement within 7 days after the earlier of:

  1. Entering into the agreement; or
  2. Making any payment under the Agreement.
    The above does not apply to the renewal, extension or transfer of an existing Franchise Agreement.

What are some of the commercial considerations?

As with any business or investment there are risks involved and careful consideration and due diligence needs to be undertaken. There are a variety of ingredients that go into making a successful franchise, these include for example:

  1. How long has the Franchisor operated the franchise system;
  2. Is the Franchisor well known or do they have a good reputation;
  3. Is the franchise system proven and does the system have a history of being profitable;
  4. Are there already in place a number of franchisees whom have been in operation for some years;
  5. Is the Franchisor willing to give you the contact details of its existing franchisees so you can canvass their views of the system directly;
  6. Do you have skills, education and experience in the industry relevant to the franchised business?  If not, how thorough is the training that is going to be provided by the Franchisor;
  7. Do you have sufficient capital;
  8. Is the Franchisor prepared to give you financial information to assist you to budget for income, liabilities and profit? In particular, will the Franchisor release the income/profitability statements of franchisees in similar territories to the territory you are acquiring;
  9. Have you sought appropriate advice from a lawyer, accountant, business adviser and/or insurance broker;
  10. Have you prepared a Business Plan;
  11. Have you considered the commitment in hours needed to successfully operate the franchised business;
  12. Have you sufficiently researched the franchise system, the Franchisor and the market in which the products/services are sold ? For example, is the product likely to be affected by seasonal fluctuations;
  13. Have you researched the Territory which you are interested in acquiring. Demographics and spending habits in one territory may differ from another. Have you considered engaging the services of a demographer to assist you with this aspect;
  14. Do you have the personality to deal with a Franchisor and comply with restrictions on your business management which may be imposed under the Franchise Agreement and Operations Manual;
  15. Have you considered whether you will fit in with the culture of the franchised system and Franchisor;
  16. Have you completed a SWOT (strengths, weaknesses, opportunities, threats) analysis.

    Note: some of the answers to these questions will be set out in the Franchisor Disclosure Document.

What are some of the Disadvantages of Franchising?

  1. Restrictions as set out in the Franchise Agreement and Operations Manual in relation to the way the business is operated. For example, only dealing with Franchisor approved suppliers; operating within a defined Territory, etc.
  2. Commitment to pay fees and royalties to the Franchisor on an ongoing basis;
  3. Where a premises lease is involved the Franchisee may be required to not only pay for initial fit out costs but there may be additional costs in the future to refurbish the Premises to meet the Franchisor's new or updated shop layout;
  4. Poor performance by other franchisees can impact on the reputation of the whole franchise system and thereby adversely impact on your franchised business;
  5. Lack of communications/assistance or poor management of the Franchisor can adversely impact on your franchised business;
  6. The Franchise Agreement is limited to a term in years - you may not be able to renew that term;
  7. Default under the Franchise Agreement can lead to your franchise being terminated.

What are some of the Advantages of Franchising?

 

  1. System is already functioning and typically proven there is less risk adopting that system as compared to a start - up business;
  2. Because the franchise system has a consistency of service and product across its franchisees, customers know what to expect;
  3. The size of a franchising network allows an increased brand presence and market penetration;
  4. Access to the know-how, procedures, training, management skills and assistance of the Franchisor helps the Franchisee to better operate and grow the franchised business - the Franchisee has someone to fall back on for advice;
  5. The Franchisor's greater purchasing power with supplier's may result in rebates and savings for the Franchisee;
  6. A successful franchised business is more likely to attract purchasers of that business in the event the Franchisee wishes to sell as opposed to a non-franchised business;
  7. Franchising in Australia is regulated - there is in addition to mandatory disclosure obligations, both a dispute resolution process under the Code and a complaints mechanism through the Australian Competition & Consumer Commission (ACCC)

How do you know the business venture you are entering into is a Franchise?

  1. Franchising in Australia is regulated through the Trade Practices (Industry Codes - Franchising) Regulations 1998, known as the Franchising Code of Conduct.
  2. The Code applies to all agreements which satisfy the definition of a franchise agreement set out in the Code. There are essentially four (4) elements which must all be satisfied:
    1. Is there an agreement ? - this could be in writing, oral or implied (although in most cases it is written);
    2. Does the business incorporate the right to supply or distribute goods or services in Australia under a system or marketing plan substantially determined, controlled or suggested by another ?;
    3. Will the business be substantially or materially associated with a trade mark, advertising or a commercial symbol of another ?;
    4. Before starting the business or continuing the business, is there a requirement to pay to another person an amount of money by way of, for example:
      1. An initial capital investment fee; or
      2. A payment for goods or services; or
      3. A fee based on a percentage of gross or net income whether or not called a royalty or franchise service fee; or
      4. A training fee or training school fee ? - clause 4(1)(d)
  3. There are some exclusions under the Code as to amounts that can be taken into account.
  4. There are also certain other exclusions under the Code.
  5. So, if the criteria above is met any agreement you enter into (even if it is called a License) will be considered a franchise agreement and accordingly the Code will apply, which in turn will place certain statutory obligations and give certain rights in respect of the Franchisor and Franchisee.

What is Franchising?

  1. It essentially involves an arrangement between a Franchisor and a Franchisee whereby the Franchisor's knowledge, reputation, procedures, intellectual property and access to its good and /or service is licensed to a Franchisee.
  2. The Franchisor also offers training, guidance, advice and assistance with marketing in relation to the franchised business.
  3. In return the Franchisee pays certain fees and royalties to the Franchisor and agrees to comply with certain obligations typically set out in a Franchise Agreement and Operations Manual.
  4. Many well known brands have utilised the franchising concept, such as: McDonalds, Dymocks, Gloria Jeans, Subway, Pizza Hut, The Coffee Club - there are many more.

Can I avoid bankruptcy?

Bankruptcy can be avoided by reaching an understanding with creditors for the satisfaction of their claims by:

  • by signing all divisible property to a Trustee for the benefit of creditors,
  • by offering, in the form of money or other property, whether by instalments or otherwise, less than the full amount due to creditors in full satisfaction of their claim; or
  • by coming to some other mutually acceptable arrangement.

How long does bankruptcy last?

Bankruptcy lasts for three (3) years but can be extended to five (5) or eight (8) years if the bankrupt has been unhelpful and has been in breach of the Bankruptcy Act 1966.

What happens when a person is declared bankrupt?

When a person is declared bankrupt, creditors are no longer allowed to deal with a debtor personally.  A Trustee in Bankruptcy is appointed and the property of the bankrupt will vest in the Trustee.  The Trustee will organise sale of the bankrupt's property to allow creditors to recover some of the money from the bankrupt.  The Trustee will also investigate the bankrupt's conduct prior to bankruptcy to determine whether there have been any transactions that can be set aside.

What if I as a director knew or suspected that the company was unable to pay its debts when due and payable?

As a director you have duties and responsibilities to the company.  There are both Civil and Criminal penalties as a result of the breach of those duties.

What is "bankruptcy"?

Bankruptcy is a process where an application is made to the Federal Court to obtain an Order that the debtor be declared bankrupt.  A debtor can also declare himself/herself bankrupt by filing a Debtor's Petition with the Insolvency Trustee Services of Australia.

What is "insolvency"?

Insolvency is when a company is unable to pay its debts as and when they fall due.

Do I need to seek a legal advice when commencing proceedings?

You do not have to seek legal advice.  However, it is strongly recommended that you do.

What is the time limit for enforcing a Judgment?

It is six (6) years from the date the Judgment was obtained.

How can the Judgment be enforced?

Judgment can be enforced in various ways, for example:

  • by seizure and sale of your property, if any,
  • by bankrupting you,
  • by redirecting the debt owing to you; or
  • by redirecting your earnings.

What happens if I don't defend a claim?

The plaintiff usually obtains a Default Judgment against a debtor who does not file a Defence.  This means that the court had found that you owe a debt to the creditor.

How do I defend a claim?

You defend a claim by filing a Defence in any of the above courts or the Small Claims Tribunal.  The form of the defence will vary depending on the Court in which you are filing the defence.

What if I am the debtor and I owe money to someone?

Your creditor will have six (6) years from the date the debt was incurred to commence proceedings against you to recover the debt.  If the debt is the one that is accumulating all the time, every time you make a payment, the time limit starts from the date you make the payment which is the confirmation of the amount owing.

Can I claim interest on the amount owing?

Yes.  The interest that you can claim will either be in accordance with the Agreement that you had with the debtor in relation to the debt.  If there was no such Agreement, the interest will be calculated at a prescribed rate, which is currently 10% per annum.

What if the debt is owing to me for three (3) years and I have not done anything about it?

You have six (6) years from the time the debt was incurred to file any of the above documents in the court or Small Claims Tribunal.

How is the money recovered?

To recover a sum owing, you will have to litigate the matter. Litigation commences by one of the following:

  • claim and statement of claim in the Magistrate, District or Supreme Court (for unlimited amounts),
  • small claim in the Small Claims Tribunal (for amounts up to $7,500),
  • minor debt claim in the Magistrates Court (for debts under $7,500); or
  • statutory demand (for debts over $2,500.00).

What is debt recovery?

Debt recovery is the process of recovering monies owing to a company, business, former partnership or person.

How long does litigation last?

It could take anywhere between a few months to a few years for you to obtain a final decision.  The length of litigation will also depend on the complexity of your matter which includes the number of witnesses, the number of issues involved, the extent of evidence, etc.

How much is litigation going to cost me?

Costs of litigation will depend on the complexity of your matter.  Our lawyers will assess the complexity of the matter and will provide you with an estimate of the costs upon engagement. Costs will depend on:

  • The complexity of your matter; and
  • The court in which proceedings are to be commenced (ie, Magistrates, District, Supreme, Federal Circuit or Federal Court).

How do I decide when to commence litigation?

We will conduct an initial consultation with you where we will collect all the information and determine the strength of your case.  Often, we will require additional investigation into your matter to determine whether it is worthwhile and commercially viable to commence litigation.

What is litigation?

When parties cannot reach an agreement by negotiation, mediation or any other form of alternative dispute resolution, such as conciliation and arbitration, litigation is the last avenue for parties to resolve their dispute.

Will the children have to go to court?

Hardly ever.  Evidence about them is normally provided by their parents, Family Consultants, other experts and Independent Children's Lawyers.

He/she is living in the matrimonial home. Why do I have to pay the home loan?

You don't unless, as is usual, you are a joint borrower with obligations to the lender who can look to both of you under the loan agreement.  You may be able to negotiate with the other party, however, to pay a reduced amount (i.e., less than half) as you have had to pay for alternative accommodation.

Can I use my household contents insurance cover level for the value?

No, that is normally the estimated cost to replace.  Market value is required.

Should I obtain market valuation of assets at the time of separation?

It would probably serve no purpose unless you have improved the property since separation and wish to quantify the value of the improvements.  The relevant time for values is "NOW" regardless of when separation occurred.

Why do I have to leave the house?

It is a practical matter.  There is no rule about which party leaves.  It is usually convenient for the party with the primary care of children to remain in the relationship home until permanent arrangements are made.  The decision to leave or stay does not affect parenting or property rights.

Can I re-open a property case on the basis of information regarding my spouse's financial affairs which has been discovered since settling?

Possibly.  Suppression of evidence is a ground which may convince the Court to vary an existing order.

Is there a chance of claiming a property adjustment if the statutory time limit has expired?

Yes, you can apply for leave which involves satisfying the Court that hardship would be caused to a party or child if leave was not granted or, in the case of maintenance proceedings, that the party applying would have been unable to support him/herself without a pension at the time when he/she could have applied.

Can a person other than a parent obtain a parenting order?

Yes, a grandparent or any other person concerned with the child's care, welfare and development.

How does the court work out what is in a child's best interest?

By applying the facts of the case against criteria set out in Section 60CC of the Family Law Act including:

  • the capacity of each parent to encourage a relationship with the other parent,
  • the practical difficulty and expense of spending time with a parent, or
  • the likely effect of any changes in the child's circumstances.

In more difficult cases it calls upon Family Consultants and other independent experts to report and/or appoints an independent lawyer for the child.

Does equal shared parental responsibility mean that the child must share their time equally with each parent?

No.  In making arrangements for a child the Family Law Act gives paramount importance to the child's best interests and contains a presumption that it is in the child's best interest for the parents to have equal shared parental responsibility.  This means that parties must consult each other and make a genuine effort to reach a joint decision about long term issues such as education, medical procedures and religion.  The primary consideration in determining the best interests of the child are that the child will benefit from a meaningful relationship with both parents and the child will be protected from harm.

The Court is required to consider whether spending equal time with each parent is in the child's best interest and reasonably practicable in the circumstances.  If not, the alternative is substantial and significant time for the party who does not live with the child (i.e. not just alternative weekends).

Do I have to go to court when my divorce is listed?

Not if there are no children under the age of 18 involved or there is a joint application for divorce.  However, the Divorce will not be granted if the Court cannot be satisfied on the application that adequate arrangements have been made for children.

Does the 12 month separation period, necessary to apply for divorce, start from the date the husband or wife moved out of home?

Only if that is the date of separation.  If you can demonstrate that a period of separation occurred while you were living under one roof such period can be counted.

Can I get a divorce if I have no idea where my husband/wife is?

Yes.  There are 3 main avenues to serve a missing person with proceedings depending upon the circumstances:

  • Obtain from the court an order requiring a Commonwealth department (such as Centrelink) to divulge to the court the whereabouts of the person;
  • Obtain an order that personal service be dispensed with; or
  • Obtain an order for substituted service (i.e., upon another individual).

Can a step-parent be ordered to support a child?

Yes.  In making such an order the court is required to have regard to the length and circumstances of the relationship with the step-parent, the previous arrangement which existed for the maintenance of the child, and any special circumstances which would result in injustice or undue hardship to anyone if not taken into account.

Does Quinn & Scattini handle NSW conveyancing?

We have a qualified NSW conveyancer who can assist you in buying and selling property in NSW and who can guide you through the different conveyancing system used in NSW.

Does Quinn & Scattini handle other property transactions?

Quinn & Scattini handles a variety of other property transactions which include:-

  1. Development contracts.
  2. Option Agreements/Put and Call Option Agreements.
  3. Broad acre developments.
  4. Strata title developments.
  5. Easements, covenants and registration of survey plans.
  6. Commercial property sales and purchases.
  7. Due diligence enquiries.
  8. Joint venture agreements.
  9. Leases.
  10. Consideration of GST issues.

Please see our Property FAQ's for further information.

What happens if things go wrong?

Most transactions will go smoothly but on occasions things may arise that you had not expected. We can guide you through these problems drawing on the experience that we have had in resolving these problems. This can include either enforcing your rights under the contract or seeking ways for you to get out of the contract. As a last resort our litigation team that can assist you should your rights have to be enforced through the courts.

What is an off the plan contract?

An off the plan contract is a contract for the sale or purchase of a property for which the title has yet to be registered. It is not a standard contract such as an REIQ contract and many developers will have their own form of contract. This makes it all the more important for you to have your contract and the associated disclosure documents checked before you sign it to ensure there are no unduly onerous clauses.

What do Quinn & Scattini do for a seller?

Check the contract on your behalf prior to you signing it.

  1. If you have signed the contract before consulting us then we will still check the contract and advise you of any special conditions.    
  2. Follow up the special and other conditions of the contract and notify you of the outcome.
  3. Arrange for the release of any mortgages over the property.
  4. Check the transfer forms before you sign them.
  5. Adjust the rates and other outgoings.
  6. Arrange and attend settlement on your behalf.
  7. Ensure that settlement takes place on time and you receive payment.
  8. Ensure compliance with the Property Agents and Motor Dealers Act and all other appropriate legislation.

Check the contract on your behalf prior to you signing it.

If you have signed the contract before consulting us then we will still check the contract and advise you of any special conditions.    

  1. Ensure compliance with the Property Agents and Motor Dealers Act and all other appropriate legislation.
  2. Obtain FIRB approval (if required).
  3. Issue a Form 32 a PAMD Lawyers Certificate (if required).
  4. Follow up the special and other conditions of the contract and notify the seller as necessary.
  5. Undertake searches to ensure that the title is in order.
  6. Provide you with a copy of the registered plan of the property so that you can check for errors, inaccurate descriptions and encroachments.
  7. Prepare the transfer documents and ensure that they are capable of registration at the Titles Office.
  8. Attend to payment of the stamp duty on your behalf.
  9. Attend to adjustment of rates and other outgoings.
  10. Arrange and attend settlement on your behalf.
  11. Ensure that you get what you bargained for namely good title to the property.

Can a step-parent be ordered to support a child?

Yes.  In making such an order the court is required to have regard to the length and circumstances of the relationship with the step-parent, the previous arrangement which existed for the maintenance of the child, and any special circumstances which would result in injustice or undue hardship to anyone if not taken into account.
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