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SPRING 2019

No more Title Deeds

The Queensland (Labour) Government recently decided to amend the Land Titles Act with the result that your Certificate of Title will no longer have any legal effect, from 1st October. A consequence of this is that you will no longer have complete control over and protection for your own real estate in Queensland, (but this Government will!) Of further note on this very topic, was a December 2018 report by a Manhattan Supreme Court grand jury which found there was an “epidemic” of fraudulent property transfers in New York City and its Office of the Sheriff had received 2000 complaints since 2014. Our current client advice for title security is that you do not fully payout your mortgage, so that the mortgage will prevent unauthorised dealings with your property. For assistance with any property or business, please call Jacelyn or Kim at our office.

Great outcome for client on Building & Pest faults

Our firm secured a $110,000 Judgment in the Magistrates Court for one of our Mudgeeraba clients. Our client entered into a Contract to buy a property and had a registered Building & Pest Inspector inspect the property prior to going unconditional. The Inspector failed to inspect the granny flat attached to the house. The inspector reported no problems with the property. Our client confirmed the Building and Pest condition satisfactory under the Contract, and it was not until after settlement that our client became aware the granny flat was riddled with termites. Our firm commenced proceedings for our client against the Inspector for his failure, in order to recover damages for our client’s lost rental income and repairs to the property. The Court agreed with our submissions and awarded the Judgment in August, plus costs and interest.

Discretionary Trust case

A recent court decision, Re Marsella, involved a blended family and a trust involving a superannuation fund established for Mrs Marsella, of which she and her daughter were the Trustees. Mrs Marsella passed away, survived by a husband from a second marriage (“the Husband”). At that time, the fund had a balance of around $450,000.00. The Daughter (who was now sole Trustee) put her own husband in as co-Trustee and they proceeded to exercise their discretion by paying all death benefits to the Daughter. The Husband argued that the Trustees breached their duty to give proper consideration of how best to exercise their discretion, and the Court agreed. The Trustees were removed and the Daughter was ordered to return funds to the Trust. Being a Trustee of a discretionary trust does not mean the Trustee has carte blanche to do what they like. If you are a Trustee or Beneficiary with concerns as to how a Trust is administered, you should seek advice from us immediately, as there could be remedies available to you, depending on the circumstances. For all enquiries about operation of, or setting up trusts, phone Jacelyn for an obligation free discussion.

Big Win for RobertsLaw Client

RobertsLaw acted for a client who had a significant win in the Supreme Court of Queensland in June this year, after 6 years of litigation. The case involved a loan and mortgage for the development and subdivision of land in Queensland. The loan and mortgage required the defendant to pay $3,775,000 to our client if breached. The defendant allowed a development approval for the land granted by the local Council, to lapse. The Supreme Court ruled that allowing the development approval to lapse might lower the value of the land and therefore the defendant was in a breach of the loan and mortgage. The Supreme Court awarded judgement in favour of our client for the total sum loaned at 12th September, 2013 plus interest at 12% and all costs. If you have any commercial litigation you want advice on, why not call Philip Roberts at our office for a consultation.

Gifts to Beneficiaries by Will: Going, Going,… Saved!

Disposing of an asset after making a Will can have significant and unexpected consequences for an intended beneficiary. If you have made a specific gift of an asset to a particular beneficiary in your Will, such as your home, and that asset is later sold without your Will being updated, your beneficiary may miss out on receiving what could have been intended to be a significant portion of your estate. In these circumstances, the rule of ademption usually applies and the intended gift fails, leaving a potentially disappointed beneficiary. Even if you have no intention of disposing of an asset during your lifetime, a sale of an asset may occur under an Enduring Power of Attorney (EPA) or by an Administrator appointed under a Guardianship and Administration Decision by the Queensland Civil and Administrative Tribunal (QCAT). In those circumstances, if you have lost the necessary capacity to make decisions about your assets and finances, the consequences can be particularly unexpected, both for you and your intended beneficiary as the gift may have similarly failed as a result of ademption. However, as part of recent legislative changes to the laws governing Attorneys under EPAs and Administrators appointed by QCAT, there may now be access to a legislative exception to ademption in circumstances where an asset is disposed of by an Attorney or Administrator in certain circumstances. There can, however, still be unintended effects for your estate, so if you are disposing of an asset, or acquiring something new, speak with Amanda at our office sooner rather than later about how this might impact your Will.  

Investing using equity in your home

With interest rates remaining in a downward trend now is a great time to consider if you are in a position to use the equity in your home for investment. The current historically low interest rates can mean your returns are higher and the investments are providing a positive return. There are a few things to consider if you are in a position to invest and at Mortgage Choice we will assist you to: 1. Discuss your goals and your plans for the future. 2. Organise a valuation of your property to confirm the equity you have available to use towards an investment. The equity is the difference in your current home loan and the value of your property. 3. Assess your borrowing capacity to see how much you can afford and ensure this is within your budget. 4. Discuss deposit requirements to ensure you have sufficient equity or if you would be required to contribute a cash deposit. 5. Outline the associated costs involved and guide you through the process. If you would like further information please contact our office on 55620748, or visit our website www.mortgagechoice.com.au/renee.polden
Christmas Holidays The office will be closed from 20 December, 2019 to 6 January, 2020.
QUOTE “For to win one hundred victories in one hundred battles is not the apex of skill.  To subdue the enemy without fighting is the apex of skill” – Sun Tzu.
Contact RobertsLaw on: Ph: 07 5530 5700 E: info@robertslaw.com.au WWW: www.robertslaw.com.au Suite 8, 60 Railway Street, Mudgeeraba QLD 4213
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