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COVID-19 : Businesses Are Deserted

Blog & Articles, Commercial Law, Tang Law

In fear of infection, public places are deserted,
businesses are deserted, but this is only the start

There is no cure, yet, to this coronavirus.

We do not know how long will this last before people feel safe to go back into public places.

We do not know when businesses will go back to normal, or can it?  Is it possible for businesses to return back to normal?

Mounting Debts

Rent is due, salary and wages are due, superannuation is due, tax is due, but business is bad and almost zero during this fearsome period, and overdraft is fully drawn.

The Government has announced relief packages for relief small businesses.  It is yet to be seen whether this assistance is adequate to save your business.

Some of this assistance is merely asking a mortgagee (and maybe a landlord in the future, maybe) to delay payments.  It does not mean no payment.  Business owners are still liable to pay them at some point in time in the future.

IMPORTANT: If you allow yourself to lose track of these mounting debts, you will risk trading whilst insolvent.  Be warned that insolvent trading is one of the situations where the corporate veil will be pierced and directors can be made personally liable.

Tips on How to Reduce the Long-term Impact

Take control now, be pro-active.  Start planning your strategies.  Here are some of the steps you could take to reduce the long-term impact of the current situation.

  • Have a well thought-through plan on how to potentially negotiate out of the situation with your mortgagee (or landlord).  What do they want to see before they are prepared to put a hold on enforcing the debt against you?  Do you have a cashflow projection?  Have you prepared your business case to bring about a strong recovery?  Note that you must exercise care in preparing these documents.  You must not express opinion that is unreasonable or unfounded, as this could be seen as your “misrepresentation”.
  • Can you plan for ways to increase your business cashflow, whether through capital raising or debt raising.  Do you have a convincing and realistic business plan to attract investors or financiers?  There are specific rules under the Corporations Act 2001 in raising capital.  Please obtain legal advice before conducting, or attempting to conduct, raising for funds.
  • Stress-test your business for survival and prepare for the worst case scenario.  At what point in time will you need to start taking steps to scale down your operation, or to close your business (in order to avoid personal liabilities)?   Think and plan, in advance, on what you can do to crystallise your losses?   You need to look at all the business contracts and work out the implications of terminating them BEFORE you decide to “walk away” from the business.
  • Do you have a sellable business?  How do you make it sellable when the business turnover is suffering?  The most valuable part of the business is its “goodwill”.  Goodwill can comprise of a few things, including location goodwill, special rights goodwill, and system or IP goodwill.  It is the core things that give a business the drivers to trade and to create income.  You should be amplifying these drivers now.  Turn them into your goodwill, sellable goodwill.

About Writer

Kelvin Tang has over 18 years’ experience practising law in Western Australia. He is the founder of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

Gabriel Wong is a senior lawyer at Tang Law and holds Bachelor’s degrees in both Law and Commerce. Gabriel was admitted to legal practice in early 2001. Gabriel has over 18 years’ experience and extensive knowledge in advising clients in relation to property, general commercial, trusts, and wills and estate matters. He regularly provides advice to in relation to the acquisition, development (both greenfield subdivision and multi-level mixed use strata developments), leasing and sale of residential, commercial and rural land.

CASE STUDY: REMOVAL OF ‘LIFETIME’ DRIVING BANS

Blog & Articles, Criminal Law, Tang Law

 

Case Study

This is a real case that happened recently.

Our client ‘Mr C’ had received not 1, but 2 lifetime driving bans.

These bans run for the life of the person found guilty of driving in certain circumstances that are found to be very dangerous to the general public. Because these matters are so serious this case went straight to the District Court.

After 10 years has elapsed the person that has received the ban is eligible to have it removed, however in this case we had to apply to have 2 such bans removed at the same time!

Preparing for the Case

As Mr C’s legal representatives we took full instructions regarding all the factors that we knew to be important in proving that our client not only deserved to get his license back, but that he was not a danger to the public.

We prepared all the paperwork, including the Application, a very detailed affidavit for our client and also affidavits to attach to letters that were to provide character references in support of Mr C; including his personal and work circumstances.

One all this was done we corresponded with the lawyer that represented the Department of Transport (on the other side, against Mr C) and made sure that all questions were answered before the Court Hearing even started.

In Court

Happily for everyone involved, the Applications for the removal of both lifetime driving bans were not even opposed by the other lawyer and the judge granted the application in Mr C’s favour.

This goes to show the importance of proper preparation and making sure that no stone is left unturned when it comes to making the best case for our clients.

If you have any questions about old driving bans (lifelong bans or shorter) then contact us and we can discuss with you exactly how we can help you to get your life back on track (and back on the road).

About Writer

Adam Ward was admitted into the legal profession in the Supreme Court of Western Australia in 2015 and joined Tang Law in May 2019. With a background in the social sciences, Adam has a very keen interest in the interaction that individuals have with the Australian legal system; whether it be from facing criminal charges, battling mental health issues, trying to enforce rights through contractual claims or going through the Family Court system. 

 

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WHAT IS PROBATE AND WHY DO I NEED A GRANT OF PROBATE?

Blog & Articles, Deceased estates, Estate Planning, Probate, Tang Law

 

What is probate?

Probate is simply the process in which a deceased’s person’s Will is proved by a court as being the last valid Will of the deceased person. In Western Australia the appropriate court is the Supreme Court of Western Australia. Similarly, in other Australian states and territories, the appropriate court is the Supreme Court of that place.

A Grant of Probate confirms that the executor named in the deceased person’s Will has the legal right to deal with deceased person’s estate (i.e. their property, money and possessions).

If the deceased person did not leave a Will, then the grant obtained from the Supreme Court is known as a Grant of Letters of Administration. There are also other types of grants, however these two are the most commonly encountered.

Although there are some technical differences between executors and administrators, for most practical purposes, the roles are essentially the same. In this article we will use the term “Legal Personal Representative” to cover both executors and administrators, and the term “Grant of Representation” to cover both types of grant.

Why do I need it?

A Grant of Representation is evidence to the world at large that the Legal Personal Representative that a person has the right to deal with the deceased person’s estate.

Further, a Grant of Representation is needed to deal with certain types of assets, such as land, bank accounts, shares, superannuation and insurance. Often without a Grant of Representation, Landgate, banks, share registries, superannuation funds and insurance companies will not deal with a person who needs to administer a deceased person’s assets.

There are circumstances when a Grant of Representation may not be needed, for example:

  • the deceased person did not own any assets in Western Australia (a Grant of Representation may be required in other jurisdictions where the deceased person owned any property)
  • if all of the deceased person’s assets were held with other others jointly (such as land, shares or money) as these assets will automatically pass to the surviving owner(s)
  • shares owned by the deceased have a market value of less than $15,000
  • the bank accounts of the deceased have a balance of less than $10,000 (the precise balance before a bank requires a Grant of Representation this varies between banks)
  • the deceased person’s estate comprises only of personal and household effects

How do I obtain a grant of probate?

The executor named in the deceased person’s Will must make an application to the Supreme Court. If the court is satisfied with the application, the court will issue a grant of Probate. If the court is not satisfied with the application, it may issue a requisition notice. A requisition notice is simply a notice which advises that there is a defect with the application or the court requires more information.

The deceased person’s original Will is retained by the Supreme Court, however a copy of the Will is attached to the Grant of Probate.

How long does it take?

An application can be made at any time after fourteen days from the death of the deceased person. It is necessary for the deceased’s death certificate to be provided in the application.

Once an application for a Grant of Representation is lodged in the Supreme Court, a Grant of Representation generally takes around four to eight weeks, however, this is dependent on the court’s workload.

Please note that this general information only and does not constitute legal advice. If you would like further information or assistance in relation to this issue or other legal issues, please contact Tang Law on (08) 9328 7525 or [email protected].

 
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NEW SUBCLASS 494 SKILLED EMPLOYER SPONSORED VISA – ARE YOU ELIGIBLE?

Blog & Articles, Immigration Law, Immigration Lawyers, Tang Law

 

Subclass 494 visa will replace the 187 (RSMS) visa on 16 November 2019.

This is a 5 year provisional visa.  If you meet the visa conditions, you can apply for subclass 191 permanent visa.

Are you eligible for 494 visa?

You must meet the following:

  • Your employer must be located in a designated regional area of Australia and have obtained approval from the Regional Certifying Body (RCB) in your area.
    • (NOTE: The entire State of Western Australia becomes regional area on 16 November 2019)
  • Your position is on the relevant occupation list. There is over 700 occupations listed in the instrument for 494 visa.
    • The position must be full-time, genuine and likely to be available for five years
    • You must be paid at the market salary rate
  • You hold and obtain positive skills assessment.
  • You have at least three years of full time and relevant skilled work experience.
  • You are under 45 years of age
  • You must demonstrate Competent English

Pathway to Permanent Residency!

You can apply for subclass 191 (Permanent Residence (Skilled Regional)) visa if you meet the following requirements:

  • You hold 494 or 491 visa.
  • You have worked in the designated regional area for at least three years.
  • Either you or your partner made an income of at least $53,900 annually for past three years.

Difference between 494 Visa and 187 Visa

There are 2 main differences compared to the subclass 187 (RSMS) visa:

  1. 494 visa is a provisional visa, not a permanent visa.
  2. You do NOT require the employer’s nomination to apply for the 191 visa.

Are you on 482 Visa?

IF:

  1. You are on 482 visa (especially short-term 2 year visa);

AND

  1. You are on the new 494 visa occupation list;

You should consider switching to 494 visa as soon as possible, as the new 494 visa will give you a pathway to permanent residency through subclass 191 visa, whereas the subclass 482 (short term) visa does NOT allow you to apply for permanent visa.

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

 
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“GUILTY” OR “NOT GUILTY”: ACCEPTING YOUR CRIMINAL MISTAKES?

Blog & Articles, Criminal Law, Tang Law

If you are charged with a criminal offence in Australia, you are generally required to enter a plea (guilty or not guilty) at the initial Court mention and the matter is then dealt with accordingly.   Depending on the seriousness of the charge(s), but almost all minor matters start out in the Magistrates Court, and this is where the first chance is given for a plea to be entered.

Do I Plead Guilty or Not Guilty?

Before entering a plea, serious and careful considerations should be given to factors including:

  • Correctness of the charges;
  • Correctness of the facts giving rise to the charges;
  • The evidence for and against the accused;
  • Personal background and relevant history that might be brought to the court’s attention; and
  • Understanding of the charge in question and the penalty or sentence that is likely to be imposed on a guilty plea.

 

Early Guilty Plea Discount

Accepting your criminal mistakes seems clear and straightforward.   This seemingly simple question (of guilty or innocent) can bring up many technical and ethical quandaries, and requires serious consideration.

In Australia, everyone has their right to a fair trial and also the right to face and question any allegations brought against them, but this does not mean that an individual Accused should always make the State prove what is alleged; this is where the Guilty Plea comes in.

If there is a grey area that is not cut and dry (like with the distinction made above between guilt and innocence) then it does not mean you can have the best of both worlds. An Accused in Western Australia cannot effectively say that ‘I am pleading guilty but I didn’t really do it.’  This is ‘traversing’ the plea and is not allowed, going to show that even the simplest premise has to be properly considered.

Plea Bargaining

When faced with multiple charges, lawyers can speak with the prosecutor for you and attempt to enter into plea bargaining, where effectively, you may agree in advance to enter into a guilty plea for the less serious charges in consideration for the prosecutor dropping the more serious charges against you.

What Do You Need To Do After Pleading “Guilty”?

Telling the truth and informing the court of what really happened is not as simple as it sounds. Accepting your mistakes and entering a guilty plea is only the beginning.  You must fully understand the consequences of pleading guilty before doing so.   If a guilty plea is entered, you must be fully prepared to accept the consequences of the penalty or sentence you may receive from the Court.

An effective legal representative is essential in bringing out the important facts properly. Even when you do not have a Defence (and so you’ve pleaded guilty as charged) there is still a lot that needs to be done in order to reduce the penalty or sentence that you would otherwise receive.

The lawyer should advise you of the supporting evidence (such as reports, references, etc) that will help persuade the Court to give you a more lenient sentence.  The lawyer may even speak with the Prosecutor in order to reach a consensus on possible sentencing options beforehand.

At a sentencing hearing, your lawyer can make a Plea in Mitigation on your behalf.  This is the crucial step when all the information and supporting evidence is pieced together by your lawyer, and light is shone on any facts that may ‘mitigate’ your offending behaviour, in order to achieve the most just, but also the most lenient, outcome for you.

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ABOUT THE WRITER

Adam Ward was admitted into the legal profession in the Supreme Court of Western Australia in 2015. Prior to this he completed undergraduate degrees in both Law and Behavioural Science, and completed his Graduate Diploma in Legal Practice with the College of Law, in Perth.

Adam started his legal career in a small general practice law firm in Perth that specialised in wide ranging criminal law matters. He then joined Tang Law in May 2019 to form part of their already vibrant team and continue working in the areas of law that he’d developed a passion for.

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