by Chris McManus, Principal
Welcome to the Spring Edition of the
Legal Link for 2014.
The dawn of the new season brings a close
on winter sports and sees the conclusion of
the McInnes Wilson Lawyers footy tipping
competition. For those who participated in
this year I thank you for your support and
the fierce competition you brought. We
hope you enjoyed it. If you didn’t get in on the action, there is
always next year!
In this edition of Legal Link, we have a number of articles
which we hope you will find of assistance including Jack
Fairweather’s tips on how to apply for a work license and
Andrew Elliott’s discussion about the recent changes that
can impact on your credit history. If you’re looking at buying
a residential property, Melanie Gebbels notes recent relevant
changes to residential property transactions. And Prue Poole
and Amy Park burst some myths concerning wills and estates.
In the “Spotlight on the Community” section we focus on
the Prostate Cancer Foundation of Australia. Unfortunately,
prostate cancer is becoming an ever increasing issue. This
great charity needs support to be able to continue its hard
work in assisting suffers and their families to reduce the
impact that this illness can have on their lives.
McInnes Wilson Lawyers are a proud supporter of the
Foundation and by learning a little more about their
contributions to so many Australians we hope you may one
day also be able to support them in some way.
On behalf of the team at McInnes Wilson Lawyers, I wish you
the very best and hope that the turn of the season brings
many fresh opportunities for you.
FREE CALL 1300 855 103 [ 1 ] www.mcw.com.au
Five Estate Planning Myths
By Prue Poole, Senior Associate and Amy Park, Solicitor
1. I am too young to have a will or I don’t own anything – Being
“too young” to have a will or “not really having any assets” are
the most common misconceptions about estate planning. If you
have been working and contributing to superannuation, then it is
likely you have a significant life insurance policy attached to your
superannuation. This often makes superannuation a person’s
largest asset. Having a will gives you the choice about how your
assets will be divided rather than letting the law decide. Doing a
will does not have to be a difficult process.
2. If I die without a will, the government gets my money –
If you die without a will that deals with all your assets, your
estate will be distributed according to the rules set out in the
legislation. The only way the government can receive your
money is if there are no beneficiaries, according to these
rules, to receive your estate. By not having a will you are
choosing for these rules to apply which may not be what you
want to happen with your affairs.
3. My executor should be a professional – There is no
requirement to appoint a professional person, such as a solicitor
or accountant, as your executor. However it may at times be
beneficial to do so. When deciding who to appoint as your
executor, trust should be the most important consideration.
Your executor can always engage a professional person to assist
them. You can appoint up to four executors in your will so you
can appoint a professional executor to act with family if you wish.
4. My kids won’t fight when I die – Although your children might
get along now, there are no guarantees they will after you die.
Dealing with inheritances can be tricky especially if someone
feels they have not been treated fairly or equally. Although, no
estate plan is bullet proof, having a properly drafted will and if
appropriate, leaving clear guidelines for your executor, can assist
loved ones in understanding your wishes and expectations, and
help avoid easily preventable conflicts.
5. Estate planning is simple (I can do it myself) – Most people want
an effective, but simple, estate plan. DIY will kits available online
or at the newsagent are an option, however extreme care must be
taken in using one to avoid unintended outcomes. Drafting a will
is more than just creating a formal document and it is essential
to understand how it will work in the future. Spending some time
and money on your estate planning while you have the ability to do
so can save cost and heartache for the family left behind. Trying
to save money on your estate planning and not doing a proper job
can lead to unintended results.
If you would like more detail on any of these or other issues
in this area, please contact the McInnes Wilson Estate Law
team on (07) 3231 0631.
Inside This Issue
Five Estate Planning Myths 1
What Changes Have Occurred to Credit Reporting 2
How to Apply for a Work Licence (Special Hardship
Order) in Queensland 2
Property Update: A Q&A on Upcoming changes for
Residential Property Transactions 3
Compensation for Psychological Injury 4
Spotlight on the Community 4
FREE CALL 1300 855 103 [ 2 ]
What Changes Have Occurred to Credit Reporting?
by Andrew Elliott, Law Graduate
As of March 2014, Australia’s credit reporting system has undergone
significant changes which allow for a more comprehensive credit
reporting system. These changes alter the level of consumer credit
information that can be held on an individual’s credit file, such as
“default information”, and types of credit accounts etc.
Reportable credit information is collected from credit providers,
courts and other organisations by credit reporting agencies. You have
the right to find out what is in your credit report along with correcting
any incorrect information. You should check your credit report each
year to make sure that all of your details are correct. There can often
be mistakes made by the credit reporting agency or creditor which
can often affect your credit rating and your ability to obtain credit.
You can get a copy of your credit report from credit reporting agencies,
such as Veda and Experian Credit Services Australia. To do this you
will need to provide the credit reporting agency with a copy with your
name, address, date of birth, phone number and driver’s licence.
Common mistakes made by credit reporting agencies include:
(a) name, birth or address details are not current; and/or
(b) the debt may be listed twice or the amount of debt may be wrong.
To fix these errors, contact the credit reporting agency that provided
you with the report. They may be able to fix a small error straight
away or take further steps to get the error corrected.
Common mistakes made by the creditor include reporting information
inaccurately or wrongly.
To the fix these types of errors the following steps may be used:
(a) If you have had a credit default wrongly listed against you,
contact the creditor. You can dispute the listing and ask for it
to be removed. If the creditor agrees the listing is wrong, they
will ask the credit reporting agency to remove the listing from
(b) If you are not satisfied with the response you get from the
creditor, contact the relevant Ombudsman service for help.
The Ombudsman can then order the creditor to ask the credit
reporting agency to remove the listing.
(c) You may be able to put a ban on your account (which is free of
charge) to ensure only credit providers can access your account.
If you have any questions or queries please do not hesitate to
contact Andrew Elliott on email email@example.com.
How to Apply for a Work Licence (Special Hardship Order) in Queensland
by Jack Fairweather, Solicitor
An application for a Special Hardship Order (SHO)
must be lodged within 21 days of your licence being
You will be eligible to apply for a SHO if your
provisional or open drivers licence has been
suspended due to either:
(i) accumulating two or more points whilst you were subject to a
good driving behaviour period; or
(ii) you have been convicted of driving more than 40km/h over the
However, you will be ineligible to apply if, within five years prior to
your licence being suspended:
(i) your Queensland drivers licence was cancelled or suspended
(including if you have been granted an SHO);
(ii) you were disqualified from holding or obtaining a Queensland
(iii) your authority to drive on any licence was been suspended;
(iv) you accumulated excessive demerit points or were convicted
of driving more than 40km/h over the speed limit at a time
whilst you were unlicensed; or
(v) you were convicted of operating a vehicle dangerously.
In order to apply for a SHO, you must complete a Form F4401- ‘Special
Hardship Order Application’ (available from a Magistrates Court) and
lodge that application with accompanying supporting affidavit evidence
along with your ‘Notice of Licence Suspension’. Again, it is important
to note that your application and supporting materials must all be filed
within 21 days of your licence being suspended.
Supporting affidavit evidence is ordinarily evidence from your employer
or doctor that clarifies a genuine need for you to be able to drive your
vehicle- be it for employment (ie. to and from work and specific hours)
or for health needs (ie. to regular and vital medical appointments or to
obtain regular medication for you or a family member).
Upon lodging your application at a Magistrates Court Registry you
will receive a copy of your application stamped by the Court to
provide to the Department of Transport and Main Roads (DTMR)-
these documents should be lodged at the DTMR as soon as possible
(though at least 7 days before the court hearing date). Your licence
suspension will only be lifted once your documents are lodged with
DTMR until the date of the court hearing.
You must note that if your SHO application is not approved by the
court, your licence suspension will be reapplied for the remaining
period of your suspension, less anytime served before you lodged
your SHO application.
The court will grant a SHO if it is satisfied that you are a fit and
proper person to continue driving, having regard for the safety of
other road users and also if refusing your SHO applicaiton would
cause extreme hardship to you or your family by depriving you of
your means of earning a living, or severe and unusual hardship
for your or your family, other than by driving you of your means of
earning a living.
In order to ensure that your application is lodged appropriately we
strongly recommend seeking assistance from a solicitor to draft and
settle your court documents and represent you at your court hearing.
If you have any questions in relation to any of the above, please
call Jack Fairweather on (07) 3014 6594.
[ 3 ] www.mcw.com.au
Property Update: A Q&A on Upcoming changes for Residential
By Melanie Gebbels, Associate
Earlier this year, the Queensland Government
passed new legislation which affects the way in
which sales and purchases of residential properties
in Queensland will be governed.
The new legislation, the Property Occupations Act
2014, is set to commence before the end of this year
and will replace the current regime prescribed by the Property Agents
and Motor Dealers Act 2000 – which you may have heard referred to
The new legislation will wind back some of the ‘red tape’ surrounding
residential property transactions.
The following Q&A is a guide to assist you in understanding how some
of these changes may affect you.
Q: I am a buyer of residential property – do I still get a cooling
A: Yes, you still get a 5 day cooling off period when you purchase
residential property, except where you purchase it at an auction, or in
the 2 days immediately after the auction (and you were a registered
bidder at the auction).
However, the cooling off period does not apply to some ‘sophisticated
buyers’ such as publically listed corporations or buyers who are
buying a number of lots in a development.
Q: What if I want to waive my cooling off period?
A: You can still choose to waiver or shorten the cooling off period.
You no longer need to wait until you see your Solicitor to do this; you
can simply give a notice to the Seller.
However, we would always encourage clients to speak to us first
before they waive any of their legal rights.
Q: What if I decide to terminate during the cooling off period?
A: Termination during the cooling off period will continue to attract
a monetary penalty (of 0.25% of the purchase price of the property).
Again, we encourage clients to speak with us first, as there may be
a way to terminate the contract that will not incur this fee.
Q: I am a Seller, how do the changes affect me?
A: One of the key changes under the new legislation is the deregulation
of Real Estate Agents commission.
At the moment, on a residential property sale, an agent cannot
charge the Seller more than the prescribed amount of commission
(5% of the first $18,000 and 2.5% of the balance of the sale price of
Under the new legislation, there will be no maximum amount of
commission prescribed, and Sellers and agents will need to agree
on the amount of commission that will be charged.
The Government believes that this will encourage competition in
the market and discounting between agents.
There are other changes which will be implemented by the new
legislation, and we can provide more information or advice to
clients who are interested in this area.
If you have any queries, please do not hesitate to contact Melanie
Gebbels, Associate, on 07 3231 0669 or firstname.lastname@example.org
FREE CALL 1300 855 103
By Patrick Cavanagh, Solicitor
To most people an injury is something you can
see. But what about those that you can’t see?
A psychological injury or “nervous shock” can be
just as debilitating as a physical injury. But how
do you know if you have suffered such an injury?
Nervous shock is the generic term for any
psychological injury suffered that is caused
or contributed to by a particular incident. Depression, anxiety type
disorders and traffic phobia are just some examples of injuries
of this kind. An exacerbation of a pre-existing condition (such as
depression) that was well managed prior to the incident can also
be classified as a psychological injury.
Examples of incidents that may cause you to suffer psychological
injury include motor vehicle accidents, a significant fall or even
medical malpractice. Even if you were not directly involved in the
incident you may still have suffered psychological injury.
In situations where you can show sufficient proximity to an incident
that caused you to suffer a psychological injury you may still be
able to make a claim. An example of such an incident may be if
a close friend of family member lost their life in a car accident at
which you were not present.
It is a common misconception that if you bring a personal injury
claim that you will be suing a person who most likely cannot afford to
pay. In fact, any payout will come from the insurer, not the individual.
If you have home and contents insurance and your house burns down,
you’d mostly likely make a claim. If you are in a car accident and your
car is damaged by someone else, you’d make a claim against their
It is worth remembering that insurance for personal injury is like
any other. It is there to ensure that people who suffer damage are
properly compensated. That is the reason this insurance (or any
other type of insurance) exists in the first place.
So if you have suffered an injury (including a psychological injury)
which you believe was caused by the fault of someone else you should
seek legal advice to make sure that you’re informed of your options.
Remember, strict time limits may apply to making a claim so it is
important that you receive proper legal advice as soon as possible.
If you believe you or someone you know may be entitled to
compensation for psychological injury, please contact a personal
injury expert from McInnes Wilson Lawyers today on 1300 855 103.
[ 4 ]
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Spotlight on the
Chris McManus, Principal firstname.lastname@example.org
Prue Poole, Senior Associate email@example.com
Melanie Gebbels, Associate firstname.lastname@example.org
Amy Park, Solicitor email@example.com
Jack Fairweather, Solicitor firstname.lastname@example.org
Patrick Cavanagh, Solicitor email@example.com
Andrew Elliott, Law Graduate firstname.lastname@example.org
In this edition we focus on the Prostate
Cancer Foundation of Australia.
Prostate Cancer Foundation of Australia (PCFA) is a broadbased
community organisation and the peak national body
for prostate cancer in Australia. They are dedicated to
reducing the impact of prostate cancer on Australian men,
their partners, families and the wider community.
McInnes Wilson Lawyers are proud supporters of the
Prostate Cancer Foundation and this month will be
participating in a Corporate Rugby Tens competition
designed as a fundraiser for the charity. McInnes Wilson
Lawyers have pledged $1000 to the Foundation which has
been raised through Friday charity collections and raffles.
The competition, set for Friday 29 August will also donate
all proceeds generated from the event to the Foundation.
This will be the first time McInnes Wilson Lawyers have
participated in the Corporate Rugby Tens event but are
already looking forward to supporting the Prostate Cancer
Foundation in the future by making this an annual event on
the MCW calendar.
For further information about the services and the
fantastic work the Prostate Cancer Foundation does
please visit their website. www.prostate.org.au