RJ THOMAS

PH: 02 9977 8211

SOLICITOR

KNOWLEDGE TRANSFORMED INTO RESULTS

Q & A

Common Questions and Answers:

Conveyancing

RJ Thomas knows that buying or selling a residential, commercial or industrial property is difficult.


RJ Thomas can provide assistance with conveyancing and property law in the following ways:

  • Preparation of contracts for sale
  • Property purchase
  • Property developments
  • Property settlements and negotiations
  • Mortgages, refinancing & property deposit funds
  • Commercial & retail leases
  • Auction Inquiries
  • Contract review
My conveyancing services are offered at competitive rates, and I deliver them efficiently and professionally.

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Binding Financial Agreements

If you are able to reach agreement on issues of property and/ or spousal maintenance you may want to enter into a Binding Financial Agreement. A Binding Financial Agreement includes all of the property arrangements that you and your partner have agreed to. There are different types of Agreements that may be entered into under the Family Law Act 1975;

1. A section 90B Agreement (commonly known as a "pre-nuptial Agreement") which is entered into between two people who are intending to marry;
2. A Section 90C Agreement, which is entered into between two people who are married and/ or separated,but who are not yet divorced;
3. A Section 90D Agreement, which is entered into between two people who are divorced.

A Binding Financial Agreement is a financial agreement, and does not include parenting arrangements.

Binding Financial agreements are a much more cost effective option for parties as it removes the Family Court from the process. In other words the Binding Financial Agreement does not have to be approved by the Family Court and the agreement is not registered with the Family Court. Of course if the agreement is breached then the Family Court is the jurisdiction where the litigation is launched in order to enforce the Binding Financial Agreement.

Four step process to calculate the asset pool

1. The Court will ascertain the net asset pool of both parties. The net asset pool is the total value of all the assets owned by either or both parties. The net asset pool includes anything acquired before or during the marriage, as well as after separation. In ascertaining the net asset pool, the Court will also consider other financial resources over which a party has influence, control or prospective entitlements. Ascertaining the net asset pool can be highly complicated. Accurate valuation of assets requires that many factors are taken into consideration, such as issues regarding taxation, stamp duties, and the appreciation or depreciation of asset values.

2. The Court will assess the contributions from both parties (both financial and non-financial). There are many types of contributions that may have been made by either spouse. The Court considers all of the following: * financial contributions * non-financial contributions (as a homemaker or primary carer of children) * gifts, bonuses and inheritance * initial contributions (assets attained before marriage)

3. The Court will assess the future needs of both parties. The Court takes into account many factors when deciding on the future needs of both parties. these include: * Age and health * Capacity to earn money * The property and assets of each party * New relationships (and new financial circumstances) * Future parenting responsibilities (care and support)

4. The Court will consider the practical effect of the proposed property settlement, and whether it is "just and equitable" to both parties. The decision is made taking into account all of these factors. Legally, superannuation is dealt with separately to property orders. However, a Court is likely to take it into account when making a decision on property orders.

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Pre Nuptial Agreements

It is now possible for people in Australia to enter into a Pre-Nuptial Agreement. A Pre-Nuptial Agreement is a type of Binding Financial Agreement. A Pre-Nuptial Agreement is a legally binding Agreement between two people who are contemplating marriage to each other. It is only binding in the event that the marriage occurs.

A Pre-Nuptial Agreement is an Agreement that deals with all or any of the property of two people who are contemplating marriage. Pre-Nuptial Agreements can be beneficial, in that they allow people to define their financial rights and responsibilities in the event that they seperate,which can help avoid confusion, provide security and minimise legal costs.

As Pre-Nuptial Agreements are legally binding, it is important for people who are contemplating entering into such an Agreement to obtain sound, independant legal advice from an experienced solicitor.

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De Facto Relationships

De-facto relationships are governed under the Property Relationships Act 1984. In the event of a breakdown in a de-facto relationship, separating couples can enter into legally binding arrangements in relation to property matters and the care of children.

Parenting matters are dealt with under the Family Law Act and the same provisions apply in relation to children of de-facto couples as apply in relation to children of married partners.

De Facto Relationships That Break Down On Or After 1 March 2009 now fall within the provisions of the Family Law Act 1975.

The law provides that de facto couples can make cohabitation agreements known as Financial Agreements before, during or after their relationship. The Family Law Act s.90UD provides for Financial Agreements to be entered into by the couple after the breakdown of their relationship.

Financial agreements are binding on parties if in writing, signed by both parties and with a certificate annexed to the agreement certifying that both parties have received independent legal advice prior to signing the agreement.

The court can set aside an agreement if: it was entered into by fraud, it would be impracticable to enforce it, circumstances have changed, the contract is voidable or a party to the agreement engaged in conduct that was unconscionable at the time of making the agreement.

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Drink Driving

What to do if you have been caught driving whilst exceeding prescribed concentration of alcohol (PCA)? The police have a strict process to follow. Several issues need to be considered. Call me for advice.

What is the difference between low range, mid range, high range readings? There is a big difference in the range of penalties between the three readings. Call me and I will explain the differences to you.

The Court will listen to reasonable requests for sympathy and I have a lot of experience on how to ask the Court for assistance on your behalf.




In Summary
When persons are found guilty of PCA offences, they receive the following penalties on average:

  • low range: $290 fine and 3.5 months licence disqualification.
  • middle range: $450 fine and 7.9 months licence disqualification.
  • high range: $669 fine and 17.3 months licence disqualification.

Prior record and other factors, such as age and sex, have an effect on the penalties imposed, with males generally receiving higher penalties than females; offenders aged 21-30 receiving higher penalties than older or younger offenders; and, of course, those with a prior record receiving higher penalties than those without priors.

Section 10- avoiding a criminal record and retaining your licence

Normally, when you plead guilty to a criminal or traffic offence the Court imposes a penalty and records a conviction. If the court records a conviction you will have a criminal record. However, if we were able to convince the court not to convict you, there would be no penalty of any type and no criminal record. In all criminal cases a court has the discretion not to convict you but deal with you under the terms of section 10.

RJ Thomas has one of the best records in N.S.W for obtaining Section 10 bonds for his clients.



Section 10 Crimes (Sentencing Procedure)
Act - Evading a Criminal record


When you plead guilty to a criminal or traffic offence the Court imposes a penalty and records a conviction. If the court records a conviction you will have a criminal record. In traffic matters this may also include a loss of license. However, if it is possible to convince the Court not to convict you, there is no penalty, no loss of licence, and no criminal record. In all Criminal and Traffic Law cases a Court has the discretion not to convict you but deal with you under the terms of section 10.

SECTION 10

The expression section10 refers to section 10 of the Crimes (Sentencing Procedure) Act 1999. This section allows a Court that finds you guilty of an offence, to discharge you without recording a conviction. Because there is no conviction, there is no criminal record. Additionally, there is no loss of drivers license and no other penalty.

Types of Section 10's.

There are three types of section 10s:

Outright dismissal - Section 10(1)(a)
Conditional dismissal with a good behaviour bond-Section 10(1)(b)
Conditional dismissal with a rehabilitation course - Section 10(1)(c)

Section 10(1)(a) - Outright dismissal
An outright dismissal under section 10 involves the court dismissing the offence without any conditions. The matter is completely over as soon as you walk out of the Court room.

Section 10(1)(b) - Conditional dismissal with a good behaviour bond
A Court can dismiss a charge under s10, but at the same time put you on a good behaviour bond for up to 2 years. The bond can have any conditions which the Court wants you to abide by. At a minimum these include:

  • That you be of good behaviour (that is, that you do not commit any further offences)
  • That you advise the Court of any change of address and
  • That you appear before the Court if called upon to do so

If you breach any conditions of the bond, the Court can call you up before it, revoke the bond and impose a different sentence for the offence. This is the most popular way that a court deals with an offender under section 10.

Section 10 - with intervention program

This refers to a section 10 which is conditional on you entering an intervention program of some kind (such as the Traffic Offenders program), completing that program successfully and complying with any action plan that results from that program.

Applying for a section 10 Crimes Sentencing Procedure Act

Courts do not give out section10's easily. Normally a Courts will need a lot of convincing before granting you a section 10. The law says that in deciding whether to give a person a section 10, the Court must consider the following issues:

  • Your age, character, record, health and mental condition.
  • The trivial nature of the offence.
  • Any extenuating circumstances.
  • Anything else the Court think is relevant.

Expert advice
If you would like our honest opinion as to your chances of a Section 10

please call me on (02) 9977 8211 or email:rjthomas@rjt.com.au

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Powers of Attorney

A Power of Attorney is a legal document that allows you to appoint another person (known as an attorney) to manage your affairs and make legally binding decisions on your behalf.

There are two types of Powers of Attorney:

1. General Power of Attorney;
2. Enduring Power of Attorney (EPA).
Some frequently asked questions about Powers of Attorney are answered below.

Q. What is the difference between a General Power of Attorney and an Enduring Power of Attorney?

A. A General Power of Attorney is only valid while you are mentally competent. Examples of when you would use this form of Power of Attorney are if you were going away on holiday or being admitted to hospital for an extended period. An EPA appoints an attorney for the long-term and remains valid even if you should become mentally incapacitated.You may also consider the appointment of an enduring guardian who you authorise to make health and lifestyle decisions for you when you are no longer capable.
In both forms of Power of Attorney, you can restrict the types of decisions that your attorney can make on your behalf by including conditions or limitations in the document.Both types of Power of Attorney cease to have effect upon your death.

Q. Who should be my attorney?

A. Any person over the age of eighteen can be your attorney. However, RJ Thomas Solicitor recommends that the person you choose to be your attorney is a person whom you trust absolutely.

Q. What is an alternate attorney?

A. An alternate attorney is someone appointed by you to act in place of your attorney should your attorney die or be unable or unwilling to continue.

Q. What powers does my attorney have?

A. Your attorney will control your property and financial affairs.

If you have given your guardian the power to deal with your personal care matters, the guardian may deal with where you live; who you live with; whether, where and how you work; what education or training you receive; whether you apply for a licence or permit; your daily dress and diet; whether to consent to forensic examination of you; whether and where you will go on holiday; and legal matters relating to your personal care.

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Wills

A will is a legal document which names the people and or organisations you elect to receive your assets upon your death What Is A Will?

A will is a written document in which you state how you want your property distributed after you die. A person who makes a will is called a "testator". Making a will allows you to choose what happens to your assets after you die. It also allows you to nominate an executor, who is the person responsible for making sure your wishes are met.

What Happens If I Die Without A Will?

If you die without having made a will, you are said to have died intestate. If this happens, your next of kin will have to apply to the Supreme Court for Letters of Administration, which will allow them to distribute your estate in a certain way. If you are the next of kin of someone who has died intestate, you should seek legal advice. Contact RJ Thomas.

Who Can Make A Will?

You can make a will if you are over 18 years of age and are of sound mind. You must know that you are making a will, understand the nature and effect of the proposed will and that you are distributing your property according to your own intentions.

If you wish to make a will and you are under 18 years and have never been married, you can apply to the Supreme Court. If you are under 18 years and married, you can make a will. Also, if you are under 18 years and are about to be married, you can make a will in contemplation of that marriage. Your will becomes valid when that marriage takes place.

Formal Requirements For Making A Will

The key requirements for a valid will are:

  • the will must be in writing
  • the will must be signed by the testator at the end of the will;
  • the testator's signature must be witnessed by two witnesses.(A beneficiary or their spouse cannot witness a will. If they do they will lose their entitlements under that will);
  • the witnesses must sign the will in the presence of the testator and each other.


As the formal requirements for making a valid will must be strictly adhered to, it is recommend that you have your will drawn up professionally by a solicitor or Trustee company.

What Should Be In A Will?

The will should specify that it is your last will and that you revoke any previous wills. It should appoint one or more persons to be your executor/s. Wills often include other requests such as funeral arrangements, preferences for disposal of the testator's body and the appointment of a guardian to look after the testator's children. As wills are only meant to deal with property, wishes such as these are not strictly binding on the executor, but can demonstrate the testator's intention. If a court is asked to determine the residency and guardianship of any children, the testator's wishes will be taken into account.

Your will should provide for payment of funeral expenses and any debts. It should then state how you want your property distributed, either by naming the item and to whom it is given, or by giving a person a certain amount or percentage of the total value of your property. If your will contains specific gifts, it should also state what is to happen with the residue (remaining assets) of the estate.

Executors

An executor is a person named in your will to look after your estate. An executor must be over 18 years of age. It is easier, although not compulsory, if the executor lives in the same state as the testator. It is also preferable to name two executors in a will. This will be of assistance if one executor dies or no longer wishes to act as executor. When considering people to be your executors, it is preferable to choose someone close to you, trustworthy and of a similar age. These are simple safeguards against possible complications later. If no executor is named in your will, the Supreme Court will appoint an administrator.

Changing Or Updating A Will

Once a will has been signed, there can be no alteration, either by crossing out or writing in new clauses. Alterations such as these will have no effect. The best way to amend or alter a will is by doing so in a separate document called a "codicil". For a codicil to be valid it must also meet the formal requirements of making a will. In many ways it may be easier to make an entirely new will.

How Marriage Or Divorce Affects Your Will

Your will is automatically revoked, or made invalid, when you get married and on the day you are formally divorced by a court. However, wills made in contemplation of marriage or divorce are valid. If you do not wish to make a will in this way, a new will must be made after you marry or divorce, otherwise you will die intestate.

Contesting A Will

A person may challenge your will on a variety of grounds including that you were not of sound mind, or were unduly influenced or pressured by another person when making your will. Wills can also be challenged if they do not meet the formal requirements for making a valid will. Another reason for challenging your will is on the ground that you failed to make adequate provision for the proper maintenance and support of a dependant. If one of your dependants expected to be a beneficiary under your will and has been left out, they may be able to make a claim. If you have been left out of a family member's will and believe you should have received a share of their estate, you should seek legal advice.

Contact RJ Thomas.

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Crime

Types of penalties

Section 10- avoiding a criminal record
Normally, when you plead guilty to a criminal or traffic offence the Court imposes a penalty and records a conviction. If the court records a conviction you will have a criminal record. However, if we were able to convince the court not to convict you, there would be no penalty of any type and no criminal record. In all criminal cases a court has the discretion not to convict you but deal with you under the terms of section 10.

Fines
By far the most common penalty imposed by the Local Court is a fine. When deciding the amount of any fine the Magistrate or Judge should consider your financial situation and your ability to pay any fine they set.

Good behaviour bonds
A good behaviour bond is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is 5 years.

Community service order
A Community Service Order (CSO) involves either unpaid work in the community at a place specified by Probation and Parole or attendance at a Centre to undertake a course, such as Anger Management. In order to be eligible for a CSO you have to be assessed by an officer of the Probation service as suitable to undertake the order. Certain medical conditions could exclude you from being suitable to undertake a work order.

Suspended sentence
A suspended sentence (Section 12 good behaviour bond) is a gaol sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the gaol sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to 2 years.

Periodic Detention
Periodic detention is a form of imprisonment. It involves detention in a periodic detention centre for a two day period each week for the length of the sentence set by the court. The two-day period commences at 7.00 pm on the day of the week specified (usually Friday) and ends at 4.30 pm on the second day following the day so specified (usually Sunday).

Prison
This is the most severe form of punishment and involves being locked up in a prison. Before a court imposes a prison sentence it must be satisfied that no other penalty other than imprisonment is appropriate.

Insolvency

We offer a broad range of services in both personal and corporate insolvency matters

RJ Thomas has a strong understanding of insolvency law and practice as it relates to the solvency of clients and options available to them as well its the legal ramifications and impacts. I have acted for insolvency practitioners and financiers and also advise directors of companies in distress.

We pride ourself on providing legally sound but commercially focused advice. We understand insolvency and the needs of our clients. This allows us to best serve their interests and get the job done.

We have over 20 years experience in the area and staff who have worked as insolvency lawyers but also as insolvency practitioners. We specialise in:

  • Bankruptcy and Commercial Recovery Actions
  • Prepacks
  • Advising Directors of Comapanies
  • The New Director Penalty Regime and it's Impacts
  • Deeds of Company Arrangement
  • The Personal Property Securities Act 2009(Cth)
  • Retention of Title Disputes
  • Informal Workouts
  • Voluntary Administrations
  • Liquidations
  • Receiverships
  • Liquidations
  • Debt Agreements
  • Business and Asset Sale Deeds
  • Licensing Agreements





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Disclaimer: "If you live in NSW please contact us for more information. Under NSW law,we cannot advertise our Personal Injury including workers compensation services unless you are a client or potential client. The following information is for ACT residents only. For more information please contact us".