Terms Glossary

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Property & Development

Word or PhraseDescription
ConveyancingThe legal process of buying and selling land.
CovenantsAn obligation on a person to do something or not do something.
DevelopersPersons or companies who develop land.
EasementsA right granted to a person over land.
Joint VentureAn agreement for two or more parties to undertake a project.
Land DevelopmentThe development of land.
LeaseThe right to occupy premises.
Management RightsThe right to manage strata title schemes.
Property purchasesPurchase of property.
Property salesSale of property.
Strata TitleCommunity title schemes.
TenancyThe right to occupy premises.

 

Corporate & Business Law

Word or PhraseDescription
ABNAustralian Business Number which is a unique identifier issued to an entity carrying on an enterprise by the Australian Business Register (ABR) operated by the Australian Taxation Office (ATO).
ACNAustralia Company Number which is a unique nine digit number issued to a company by the Australian Securities and Investments Commission (ASIC).
Bare TrustA trust in which the beneficiary has a right to both income and capital and may call for both to be remitted into his own name. Often used for self managed superfund borrowings.
Business NameA business' registered trading name.
Buy sell optionsAn agreement between co-owners of a business granting each other options to buy or sell their respective interests upon the occurrence of specified event (often death or incapacity).
ChargeA security interest over the assets of a company.
ConstitutionRules of a company.
Discretionary TrustA trust where the beneficiaries to the trust fund are not fixed, but are determined by the trustee pursuant to the terms of the trust deed. Also referred to as a family trust.
Due diligenceInvestigation of a business or company.
FranchiseA business using another's business model under an agreement.
Going concernA business that will continue to operate.
GuaranteeTo provide a promise or assurance that obligations will be fulfilled.
GuarantorA person who provides a guarantee.
Hybrid TrustA trust which mixes elements of a discretionary trust and a unit trust so that a beneficiary has a fixed entitlement to some part of the income or capital of the trust but the trustee has discretion to distribute some part of the income or capital.
IndemnityAn assumption of liability for another person.
MortgageAn agreement that creates a security interest in an asset between a lender and borrower.
PartnershipAn agreement between parties to carry on a business in common with a view to make a profit.
SecurityAn asset that is pledged to secure a promise or obligation, typically a loan.
SharesA fractional part into which the capital stock of a company is divided.
Shareholders AgreementAgreement of shareholders in a company.
Unit trustA trust in which the trust fund is equitably divided into units reflecting a proportion of the value of the trust fund. Often used for investments.
Walk in walk outAn arrangement where a buyer of a business takes over all existing stock and all debtors and creditors on the settlement day.

 

Commercial Litigation

Word or PhraseDescription
BankruptcyAn insolvent individual whose finances are managed by an independent trustee.
Building DisputeAny dispute with arises out of a construction contract or is related to any type of structure that is built on land or an agreement concerning the building of any structure on land.
Civil LitigationAny court proceedings which are not of a criminal or family law nature.
Commercial LitigationAny court proceedings where the subject matter of the dispute stems from a commercial relationship.
Corporate DisputeAny dispute with stems from the dealings of an Australian company.
Directors DisputeAny dispute between company directors that concerns the affairs of a company.
DisputeAny situation where one party desires a different outcome to another party.
Employment DisputeAny dispute related to an employment or in some cases, subcontractor relationship.
Franchise DisputeA dispute concerning a franchise agreement between a franchisor and franchisee, usually pursuant to a franchise agreement.
InsolvencyInability of a person or other party to pay their debts as and when they fall due.
Intellectual Property DisputeAny dispute that concerns the ownership of design rights, copyright, creative rights or the ownership of property which does not have a physical nature but which is the fruit of somebody's labours.
LiquidationThe process by which an insolvent company has its affairs wound up.
Meeting of CreditorsAny meeting called by a liquidator, trustee in bankruptcy, or administration etc which brings together the creditors of  a company or person so that they can ask questions and decide the answer to certain questions as a group.
Part X AgreementAn agreement between an insolvent person with their creditors so that the person can pay the debts off without becoming a bankrupt.
Property DisputeAny dispute which relates to property holding or the reorganisation of real property (eg subdivision, development application etc).
Public ExaminationThe examination of company directors or certain other classes of people in a formal way before a court so that liquidators, trustees in bankruptcy or certain other people can obtain information on oath.
ReceivershipThe appointment of an external party to control the business and/or assets of the company, and if necessary, sell the assets and/or business so that a secured creditor gets paid back their debt.
SolvencyThe ability to pay debts as and when they fall due.
Subcontractor ChargeA claim by a subcontractor either over assets or payment from a builder to a head contractor, usually pursuant to the Subcontractors Charges Act 1974.
Tax DebtAny debt or alleged debt which is owing to the Australian Taxation Office or claimed by them.

 

Family & De Facto Law

Word or PhraseDescription
AccessOld term for visitation with a child.
AdoptionFormal process to bring a child into a family unit.
AVO/DVOApprehended violence order/domestic violence order – designed to protect a party from physical, emotional, psychological and other abuse.
BFA - Binding Financial AgreementLegally binding document which divides your assets.
Child ProtectionA matter involving the Department of Child Safety removing a child from a parents care.
Child representationThe role of the Independent Children’s Lawyer i.e. to work out the best interests of a child.
Child SupportThe responsibility to financially support a child.
Child Support AgreementA legally binding document which changes your child support payments by consent with the other parent.
Conciliation conferenceA mediation conducted by the court in property settlement matters.
ContactNewer term for access – spending of time with a child.
CustodyOld term for the primary care of a child. Who the child lives with.
De FactoNon-married couples living together in a “married type” manner.
DivorceThe formal ending of a marriage. Divorcing your husband/wife.
Family consultantThe person appointed by the court to write a brief report about the family situation and provide recommendations.
Family reportAn interview process which involves the parents of the child and significant others, designed to provide assistance to a court on working out the best interests of a child and how to support them.
First return dateThe first date after an application is filed with a court.
ICLIndependent Children’s Lawyer.
Interim hearingA process whereby the Court considers the application and response documentation of each party, hears submissions and makes a decision which is not the final decision.
Lives withCurrent term for where a child spends most of their time.
MediationA round table type discussion involving the parties and sometimes their lawyers, designed to try and bring about an agreement with the assistance of an independent person.
MentionA court date that is used to check progress of a matter.
(equal shared) Parental ResponsibilityGuardianship, responsibility for the long term decisions concerning a child such as education, religion.
Parenting PlanA less formal agreement between parents about the day to day arrangements for the child.
Property SettlementThe arrangement, for de facto or married couples, whereby they work out who receives what portion of the property pool they have accumulated during the relationship.  Dividing your assets.
ResidenceNewer term for custody – primary residential care of the child.
SeparationWhen parties no longer wish to live together or be seen as a couple or husband and wife.
Sole occupancy/ouster orderAn application designed to secure the residential arrangements for one party, which involves the other party being formally told to leave the residence and find somewhere else to live.
Spends time withFormerly access – visitation or spending of time with the other parent.
Superannuation splittingA formal process whereby a portion of one party’s superannuation is split off to the other party’s superannuation fund.
SurrogacyArrangement whereby someone independent from a couple carries a baby to term, altruistically or commercially.

Wills & Estates

The laws that determine how an estate will be distributed when there is no will. These rules are contained in the Succession Act 1981.

Word or PhraseDescription
AdministrationThe process of collecting the assets, paying the debts, and distributing the estate in accordance with the will (or, if there is no will, in accordance with the intestacy rules).
Advance Health DirectiveA special form of document that gives directions about a person's health care wishes.
AHDSee Advance Health Directive.
BDBNSee Binding Death Benefit Nomination.
BeneficiaryA person who is entitled to a portion of an estate or trust.
Binding Death Benefit NominationA direction that obligates the trustee of a superannuation fund to pay superannuation death benefits to a particular person or to the estate.  Not every superannuation fund recognises a BDBN.
Challenging a willSee “Contesting a will”.
CodicilA document that amends a will.
Construction of a willHow a will is construed (interpreted). In other words, the meaning of the will.  While probate is concerned with determining what the will says, construction is about determining what the will means.  If there is uncertainty about the meaning of a will, an interested party can apply to the Supreme Court to have the will construed.
Contested probateAlso called “Probate in Solemn Form”.  When there are doubts about the validity of a will, the court can be asked to determine whether a particular will is valid.  The most common basis for contesting the validity of a will is that there is doubt about the testamentary capacity of the person who made the will.  Another basis for contesting the validity of a will is that the will was made as a result of undue influence.  The validity of a will may also be contested on the basis of lack of knowledge and approval.
Contesting a willThe main ways of contesting a will are by contested probate or by a family provision application.
De facto partnerA de facto partner may be entitled to a share of an estate under the intestacy rules.  A de facto partner may also be entitled to make a family provision application.  For the purposes of the Succession Act 1981, the definition of de facto partner is found in section 32DA of the Acts Interpretation Act 1954 (Qld)
Donatio mortis causaLatin phrase describing a binding verbal gift, where the gift is made in expectation of imminent death.  Plural: donationes mortis causa.  A will must be in writing, but this type of gift can be verbal.
Enduring Power of AttorneyA special form of document authorising someone to act on behalf of another person.  It is "enduring" because it continues to be effective when the person making it no longer has capacity to manage their own affairs.
EPASee “Enduring Power of Attorney”.
EstateAll of the assets and liabilities of a deceased person.  The word can also apply to the affairs of a living person, but it is not commonly used in that context except in a bankruptcy.
Estate AdministrationWhen you are the executor of a will and you need help attending to paying the final bills and distributing the assets to the beneficiaries we are able to provide this service.
Executor/ Executrix/ ExecutricesA person appointed by a will to administer a deceased person's estate.  Executrix is the feminine version, and "executrices" is the feminine plural.  Nowadays, "executor" is used as a term that is gender-neutral.
Family Provision ApplicationThe spouse, children (including step-children), and some categories of dependants of a deceased person may be entitled to claim further provision from an estate.  In Queensland, this type of claim can be brought in the District Court or the Supreme Court, depending on the amount of provision claimed.  The court may override the will (or the intestacy rules) if the applicant shows a need for further provision from the estate.
FPASee “Family Provision Application”.
Further provisionSee “Family Provision Application”.
IntestacyAn estate where there is no will.
Intestacy RulesThe laws that determine how an estate will be distributed when there is no will.  These rules are contained in the Succession Act 1981.
Joint tenancyA form of property ownership between two or more people, where the survivor/s automatically take complete ownership of the property on the death of any of the co-owners.  In contrast, see tenancy in common.
Knowledge and approvalFor a will to be valid, the testator must know and approve what is in the will.
Letters of administration on intestacyWhere there is no will, the court may appoint someone to administer the estate in accordance with the intestacy rules.  The court's authorisation is called letters of administration.
Letters of administration with the will annexedAlso known by the Latin phrase "Letters of administration cum testamento annexo".  When the executor does not obtain probate, another person may be appointed by the court (by being granted letters of administration) to administer the estate in accordance with the will.
Mutual willsWills made in conjunction with an agreement that the testators will leave their estates in a particular way.
No Win No FeeIf you want to contest a will we can consider the details of your claim, the number of other potential beneficiaries and the size of the estate and consider if we will act for you on a no win no fee basis.
ProbateA document issued by the Supreme Court confirming the authority of the executor to administer an estate.
Probate in Solemn FormSee "Contested probate".
SMSFSelf Managed Superannuation Fund.  An SMSF is governed by its trust deed and by other relevant laws such as the Superannuation Industry (Supervision) Act 1993 (Commonwealth).
Solemn Form ProbateSee “Contested probate”.
Succession Act 1981This is the main statute that governs succession law in Queensland.
Succession LawThe area of law that deals with inheritance upon death.
SuperannuationSuperannuation death benefits do not automatically form part of an estate.  This will depend on whether the trustee of the superannuation fund exercises a discretion (or is obligated, pursuant to a binding death benefit nomination) to pay the superannuation to the estate.
Tenancy in CommonA form of property ownership between two or more people, where a deceased owner's share becomes part of his/her estate, which he/she is able to dispose of in a will. In contrast, see joint tenancy.
Testamentary Capacity

Testamentary capacity refers to the mental capacity of a person to make a will.  A person may have sufficient mental capacity to make a will even though they are physically incapacitated.  The following is one way of stating the legal tests for testamentary capacity (paraphrasing the test in Banks v Goodfellow, as re-stated in Read v Carmody):

  • Did the testator have the capacity to understand the legal nature and significance of making a will?
  • Was the testator capable of being aware of, at least in general terms, the nature, extent and value of the testator's property?
  • Was the testator capable of being aware of those who may reasonably be thought to have a claim upon the testator's testamentary bounty, and the basis for, and nature of, the claims of such persons?
  • Did the testator have the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons?
  • Did the testator suffer from a condition (whether "mental illness" [or psychosis] in the strict sense, or any other form of "mental disorder", including, but not limited to, deterioration in higher intellectual function, or dementia) which detrimentally affected the testator's consciousness or sense of orientation, or which had brought about disturbances to the testator's intelligence, cognition, thought content, thought processes, judgment and the like (whether or not that condition may be transient, or, if appropriately treated, reversible)?
If the testator fails any of those tests, then he/she does not have testamentary capacity.
Testator/TestatrixA person who makes a will.  Testatrix is the feminine version.  Nowadays, "testator" is used as a term that is gender-neutral.
TFMTestator's Family Maintenance application; same as FPA.
TrustA trust exists where the legal owner of property holds that property for the benefit of the beneficiaries of the trust.
UndueWhen a person has been coerced into making a will, that will is invalid as it is said to have been made as a result of undue influence.
WillA revocable disposition of property, taking effect upon death.

 

Compensation Claims

Word or PhraseDescription
Car Accident / Motor Vehicle AccidentReference to area of law.
CompensationOutcome in negligence action for damages.
Compulsory ConferenceAfter the parties have completed their investigations (as to the cause of the incident and the loss/injury suffered by the injured claimant) they will meet in an attempt to resolve the matter.  Each party is granted the opportunity to present submissions as to their case.  After each party has had the opportunity to provide submissions, they will engage in settlement negotiations to try and resolve the matter.
Duty of careAspect of negligence commonly wielded by layman without full understanding as to meaning.
EmploymentIf you have suffered injuries in your workplace, you may be entitled to make a claim for compensation.
ExpertsAn injury claim may require your solicitor to seek evidence from a variety of experts in order to substantiate the cause of the incident or the loss/injured you have suffered.  Most commonly, expert evidence is provided by medical specialists as to the cause, diagnosis and severity of the injuries suffered by an injured claimant.  Expert opinion may also be sought from non-medical experts to help understand the circumstances of the incident.  For example, evidence may be sought from a mechanical engineer to explain how a machine has malfunctioned causing injuries to the injured claimant.  In some matters, an expert security opinion may be required to determine whether the use of force by a security guard or police officer was excessive.  In certain circumstances, a forensic accountant may be briefed to provide evidence on the economic loss suffered by the claimant since the incident.
Income ProtectionIncome protection insurance provides an injured worker with ongoing payments whilst they are incapacitated to work due to injury or illness.  If you have an income protection policy (through a private insurance provider or your superannuation fund) Quinn & Scattini Lawyers may be able to help you access these payments.
Independent Medical AssessmentOnce your injury has stabilised, you will be required to undergo medico-legal assessment by each party’s chosen expert.  These experts will be independent from you, in that they have never previously provided you with medical treatment.  These experts will conduct a (face to face) consultation with you in order to obtain your instructions as to the incident and your ongoing symptoms.  They may also require you to undergo further investigations to determine your diagnosis such as an MRI or X-Ray.  Common medico-legal experts include orthopaedic specialist, neurologist, neurosurgeon and psychiatrist.
Injury/InjuriesInjury.
Liability

In order to succeed in a personal injury claim, an injured claimant must prove:

  • that the person or company at fault owed them a duty of care (that is, that there existed a relationship which required them to take reasonable care for the claimant’s safety)
  • the person or company breached that duty of care, and
  • the injured claimant suffered loss and injury.
Medical NegligenceMedical negligence (also known as malpractice or health law) is an area that encompasses injuries suffered as a direct result of a medical facility or treating practitioner.  If a treating practitioner fails to utilise reasonable care or skill during the treatment of your injuries then you may be entitled to make a claim for compensation.
MitigationThe legislation and the courts require an injured claimant to take all reasonable steps to recover from their injuries and return to their normal activities (such as work) as soon as is practicable.
Motor accident

If you have suffered injuries as a result of a motor vehicle accident, you may be entitled to pursue a claim for compensation.  Motor vehicle accidents encompass a number of different circumstances.

You may be entitled to pursue compensation if you have suffered injuries whilst you are:

  • the driver or passenger of a vehicle,
  • the driver or passenger of a motorbike,
  • a cyclist,
  • a pedestrian, and
  • travelling on public transport.
NegligenceArea of law.
No Win No FeeFully speculative retainer.
Notice of Accident Claim FormThe Notice of Accident Claim Form is the initiating claim form in the motor vehicle claims process. The claim form seeks details as to the incident, its causes for same and the injuries sustained by the claimant.
Notice of Claim for DamagesThe Notice of Claim for Damages is the initiating claim form in the employment claims process. The claim form seeks details as to the incident, its causes and the loss and injury suffered by the claimant.
Part 1 Notice of Claim FormThe Part 1 Notice of Claim Form is the initiating claim form in the public liability claims process. The claim form seeks details as to the incident, its causes for same and the injuries sustained by the claimant.
Personal InjuryArea of law.
Public liability

Public liability claims arise when individuals have suffered injuries in a public place.  Public liability claims encompasses a number of different circumstances. 

Examples of circumstances that may entitle you to pursue a public liability claim, include:

  • injuries arising in a park or other public place (from a slip, trip or fall),
  • injuries arising in a rental premises,
  • recreational and sporting injuries (jet-ski and diving accidents),
  • injuries sustained from an animal (dog attack or horse riding accident),
  • injuries suffered at school, and
  • physical and/or sexual assaults.
Quantum

Quantum relates to the damages (or compensation) that an injured claimant is entitled to receive at the successful resolution of their injury claim.  The quantum of a claim is determined on a case-by-case basis having regard to the evidence (regarding the cause of the incident and the loss/injury suffered by the claimant).

Injured claimants are generally entitled to claim compensation for:

  • past and future medical expenses,
  • past and future loss of earnings,
  • pain and suffering as well as loss of enjoyment of life, and
  • care and help provided by friends, family or any other individual.
In the majority of cases, the parties will attempt to place a monetary value on the gap between your life path before and after you suffered the injuries.
RehabilitationRehabilitation describes specialised healthcare that is dedicated to improving, maintaining and/or restoring an individual’s strength, cognition and mobility.  Rehabilitation aids people in gaining greater independence after they have suffered injury, illness or surgery.  In certain claims, the defendant (or the party at fault for the incident) will be obligated to fund an injured claimant’s rehabilitation.
Slip and fallReference to area of law – public liability claims.
Superannuation / Insurance claimsIf you’re unable to work due to illness or disability, you may be entitled to financial benefits through your superannuation, life insurance, or other insurance policies.
Total and Permanent Disability BenefitA Total and Permanent Disability benefit is a lump sum payment paid to an individual when they have suffered an injury or illness that prevents them from returning to work.  These funds are commonly utilised by the injured worker to fund medical treatment, pay outstanding debts and provide an ongoing stream of income to preserve their quality of life.
WorkCoverArea of law.
Workers CompensationArea of law.

 

Traffic Law

Word or PhraseDescription
BailBeing able to remain in the community rather than in custody when awaiting a criminal matter to be heard before a court.
Disqualified drivingOffence of driving when you have been told by a court not to drive.
Drink driveDriving with alcohol in your system putting you over the legal limit.
Drug drivingDriving with drugs present in your system.
Magistrates/District/Supreme CourtThe venue where traffic and criminal matters are heard.
Special hardship licenseApplication made to the court when you have accumulated too many demerit points to enable you to keep driving for work purposes.
SpeedingDriving in excess of the speed limit.
Work licenseApplication made to the court when you have been caught drink driving to enable you to keep driving for work purposes.

 

Criminal Law

Word or PhraseDescription
AggrievedPerson making the DVO application.
AssaultAn offence of causing physical injury to another.
Criminal/defence lawyerPerson who represents accused people.
Domestic violence order (DVO)An order taken out to ensure that a person cannot harass/intimidate/contact another.
FraudAn offence of gaining an unauthorised financial benefit.
Indecent treatmentAn offence of touching/interfering with children under the age of 16.
JailThe institution prisoners are kept.
Magistrates/District/Supreme CourtThe venue where traffic and criminal matters are heard.
Obstruct policeThe offence of not obeying police.
PenaltyThe outcome of pleading guilty.
Pleading guiltyAdmitting to committing an offence.
Protection orderAnother phrase for above.
Public nuisanceThe offence of acting offensively in public.
RapeAn offence of non consensual sex.
RespondentPerson against who the DVO has been taken out against.
RobberyAn offence of stealing.
TrialThe process of defending a charge.

 

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