Publications

Fleming Muntz publishes regular updates on recent cases and developing legal topics for referring accountants, financial planners and property agents. Please contact us if you would like to receive these updates by email

2009 Publications Archive

Diamonds may be, but ... TRUSTS ARE NOT FOREVER

Summary We have recently been involved in several matters where clients or their advisors have assumed that a family trust operates forever.   What are the limits? In general, only charitable trusts are perpetual. Other trusts, and certainly...

Dangers for members of self managed super funds

Summary Those who hold their super in a self-managed fund need to take particular care in making arrangements for the distribution of benefits on their death.   What’s changed? The case of Katz v Grossman [2005] NSWSC 934 highlighted i...

Life and death planning for the disabled

Summary Parents of disabled children worry themselves needlessly about what will happen to their child when they die. There are legal strategies that can protect a disabled person, and ensure their financial future and other needs.   What are...

Minuting the meeting: Why it matters

Summary The NSW Supreme Court decision relating to James Hardie’s asbestos liabilities shows the importance of recording minutes of directors’ meetings as the Corporations Act requires.   What was the case about? The James Hardie...

Compulsory Acquisition of Land by the RTA

Summary The Roads and Traffic Authority of New South Wales (“RTA”) is able to compulsorily acquire land or an interest in land for public purposes. This briefing sets out information about the procedure, your right to compensation and w...

Employee Redundancy & Restructuring

Summary Businesses struggling through the current recession often consider making employees redundant or restructuring their working conditions. Both involve legal considerations and can cause further problems if not handled correctly.   Wh...

Business succession planning

Summary Most clients look very closely at their personal estate planning, but often overlook considering what we term “business succession planning”.   What’s changed? Business succession planning is an issue of growing imp...

Stamp duty abolition: Too risky to count on

Summary We have recently seen schemes being promoted that promise significant stamp duty savings, based on the proposed abolition of NSW duty for business and share sales.   However, we believe that uncertainty about the abolition, together w...

First home buyers - Avoiding the pitfalls

Summary The recent boost to the First Home Owners Grant has created a lot of incentive for first home buyers to purchase a property. We believe it is timely to address some of the pitfalls first home buyers should avoid.   Ask plenty of quest...

Super fund borrowings - Renewed interest?

Summary The recent share market “meltdown”, has meant many fund trustees are looking at other options for investment. Limited cash in a fund means limited purchase options – it may be worthwhile for trusts to take another look at s...

2008 Publications Archive

Trust update: Cloning & stamp duty

Summary   The opportunity for trust cloning or splitting without CGT consequences has been abolished.   We are also told that stamp duty will more than double for trusts created from 1 January 2009.   What’s changed –...

New Victorian Contract of Sale

What’s changed? For Victorian transactions, a new form of contract was introduced on 28 September, 2008, replacing the “old” contract note and contract of sale.   The new contract is a joint product of the Property Committee...

The risk of pre-dated trust distributions

Summary A recent advice we were asked to prepare highlights the importance of following to the letter trust deed provisions about when and how distributions of income can be made.   What were the facts? Our advice was based on a 1991 decisi...

Registered Office Responsibilities

Summary Most accountancy practices, and many law firms, allow their premises to be used as the registered office for clients’ companies. This strengthens the professional relationship, but the NSW District Court case of HP & CJ Sween...

Preliminary Agreements - To bind or not to bind?

Summary The usefulness of preliminary agreements in a commercial transaction is often undermined by uncertainty about whether they are binding on the parties or just record intentions without being enforceable. What are preliminary agreements? Whe...

Sale of land: rejecting reduced deposits

Summary A recent Court of Appeal decision is another reason why agents should encourage vendors to reject reduced deposits and accept nothing less than the full 10% deposit of the purchase price on the exchange of contracts for the sale of land. Wh...

The Risks of an Unintended Franchise

Summary The definition of ‘franchise’ in the Franchising Code is wider than many professionals think. We have seen several cases where the licence of a trademark, or business branding, unintentionally created a franchise relationshi...

Estate planning: More than just a Will

Summary A properly drawn Will ensures a smooth transition of wealth to beneficiaries, but assets that are not "legally owned" by a Will maker require special attention. What’s changed? The increasing complexity of business, and gre...

Profile: The firm, the philosophy

The firm Fleming Muntz is a prominent specialist law firm in the Albury-Wodonga region, with an established reputation for integrity and consistently high-quality legal services. The firm specialises in business law and estate and succession plan...

Franchising Code Changes

Summary Effective from 1 March 2008, changes to the Franchising Code of Conduct increase disclosure obligations for franchisors and offer more information to intending franchisees. What’s changed? The principal changes include: The fr...

Lack of capacity and undue influence – the “Sleeping Giants”?

Summary Medical advances and healthier lifestyles mean "baby boomers" will live longer than previous generations.  Inevitably, this will mean many more of your senior clients may suffer from impaired mental faculties as a consequ...

Succession and Estate Planning for Country Clients

The farming community represents one of the great paradoxes – many families have high net worth, but suffer from wildly variable incomes, poor provision for retirement and an appalling return on capital. Whatever their skills may be, and despit...

2007 Publications Archive

Difficulties restraining ex-employees

Summary A recent Supreme Court decision shows that restraints on ex-employees will be difficult to enforce – even when they are paid salary for the period of the restraint – unless there really is ‘confidential information’ t...

Avoiding the Super "death duty"

Summary Recent changes to superannuation have meant that it is probable large sums will be held in many superannuation funds at the time of death of a fund member, with the prospect of significant tax being paid as benefits pass to non‑dependent ben...

Co-operatives and capital raising

Summary Co-operatives remain an important business structure, especially in agriculture and regional areas. While they are far less popular than companies, they still have significant advantages. What’s a co-operative? Co-ops have exist...

Special Disability Trust - A $500,000 relief

Summary Families may now make private financial provision through a special disability trust (“SDT”) for a family member with severe disabilities. The severely disabled person’s pension is not affected by any trust income, or tr...

Caveats, final searches and writs

Summary A recent decision of the High Court of Australia has raised concerns for purchasers and their legal practitioners. What’s changed? The effect of the High Court decision is that if (for example) a Writ or other "encumbrance"...

Fixing flawed trust deeds

Summary A 2006 decision of the NSW Supreme Court highlights a useful way to change trust deeds that were poorly drafted. What’s changed? The NSW Trustee Act has always contained a provision that allows the Supreme Court to give a trustee pow...

Stamp duty abolition brought forward

Summary The NSW Treasurer took what must be an almost unprecedented step in the 2006 Budget when he announced that stamp duty abolition was being bought forward. What’s changed? Mortgage duty was to be halved from 1 January 2010 and eliminat...

"Living Wills"– Lessons from the Schiavo case

Summary Any individual can sign an "Advance Care Directive" or "Living Will" to record their personal wishes for medical treatment at the end of life. Although not a binding legal document, it may give guidance and comfort t...

Confident about your confidentiality deed?

Summary Confidentiality deeds are a common and useful feature of the commercial landscape. Drafting them to accommodate the needs of particular transactions ensures that they are effective and enforceable. What is a confidentiality deed? A co...

Estate Planning Brochure

What is estate planning? Will Superannuation & life insurance Power of attorney Health care & medical treatment Living will   What is estate planning? Most people use “estate planning” to r...

Testamentary Trusts

What is a testamentary trust? Why is it used? What assets make up the trust? Are there alternatives? New trends   What is a testamentary trust? A “testamentary trust” usually refers to a discretionary f...

Super changes - A new death duty?

Summary Recent changes to superannuation herald a shift to a simplified regime offering unparalleled benefits for “baby boomers” on the cusp of retirement. The current “crop” of retirees has greater wealth than preceding gen...

Choice of Executor – A matter of trust

Summary One of the most important decisions for a will maker is who is to act as an executor of their will. The executor must be someone who can be trusted to carry out the wishes and represent the best interests of the will maker.  What does ...

Land Tax – opportunities for unit trusts

Summary A recent High Court decision has made more unit trusts liable for land tax. An opportunity exists to amend the deed and avoid the new liability, but care is needed to avoid a resettlement. What’s changed? Unit trusts have, in the pas...

Who will receive the super?

Summary A superannuation fund payment is often the largest asset of an estate, but in many cases a will-maker overlooks taking steps to control who will receive benefits from a superannuation fund. Death benefit nomination Most superannuation trus...

11 Mistakes to avoid when Buying and Selling Property

Not checking what you’re signing Not being an individual Not watching critical dates Not paying a deposit Inadequate searches and enquiries The wrong person bought it Missing the cooling-off period Not s...

House Moving Checklist

Before you move, have you arranged: A removalist or trailer/truck hire? Electricity and gas to be disconnected and re-connected? Telephone and Internet services to be transferred? Mail redirection with Australia Post? New...

Home purchase: simple and stress free

Summary At Fleming Muntz we recognise how important the purchase of a home is to our clients. In an effort to make this process as simple and as stress-free as possible we now provide our clients with two valuable documents: Legal steps to yo...

Trust cloning: Harder than we thought?

Summary The CGT exemption for assets passing to a cloned trust has always seemed too good to be true. A recent ATO document signals that the Office is setting a very high standard for the exemption that, in many cases, may be impossible to satisfy....

2006 Publications Archive

Some NSW Stamp Duties to go

Summary The progressive abolition of several types of stamp duty in NSW is very welcome, but we have to wait for more than five years to enjoy all the benefits. Timetable for abolition The previously announced schedule for eliminating several stam...

Smoke Alarm Notice for Land Contracts

Mandatory smoke alarm warning notice - What’s changed? As from today, 1 December 2006, every contract for sale of land in New South Wales must include a warning notice about smoke alarms. The full text of the notice is: WARNING SMOKE AL...

'Pre-nups': A new direction

Summary Binding Financial Agreements (BFA's) – otherwise known as "Pre-nups" are becoming a more popular estate planning tool, particularly in the farming community, in business, and in second relationships. What’s changed? F...

Small Business CGT Concessions Widened

Summary The small business CGT concessions will be easier to obtain from 1 July 2007. This will be good for most small businesses, but we see difficulties for farmers trying to take advantage of the same concessions. What’s changed? As part...