Be careful of the promises you make….

PropertyA recent judgment handed down by the Supreme Court of South Australia has highlighted the dangers that exist in making rash promises, particularly where family members are concerned.

In Rodda v. Rodda, the Supreme Court of South Australia found that a son was entitled to a proprietary interest in the family farming business and properties as a result of promises that had been made many years earlier that the family farm would one day be his. The trial judge accepted evidence of the son that he had worked on the family farm for 18 years accepting a relatively low wage in the expectation that he would one day benefit from taking over the family business. He had conducted renovations to a house on the farm at his own expense and had not pursued any other career or form of self-employment because of the expectation that he would eventually take over the farming operations.

When the relationship between father and son broke down in 2002, the father attempted to deny the son any interest in the property and claimed that the family business was still owed $135,000.00 by the son for a loan that had been given some years earlier.

At the end of the day, the court found that the representations and promises had been made and that based on those assurances, the son had continued to work in the family business, not sought any alternate career, had expended his own time, money and energy in improving the property and had done so as a consequence of the inducements that had been made. Accordingly, it was found that it would be inequitable for the son to be denied a proprietary interest in the property.

Whilst the case is a rather extreme example, it serves as a reminder of the need to be careful about what you promise and to ensure that any commercial arrangement is well documented, less there be no misunderstanding.

Travis Schultz
Practice Group Leader
Schultz Toomey O’Brien Lawyers, Part of the Slater & Gordon Group
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Realtor falsely advertised ‘waterfront’ ‘riverside’ property.

HouseA real estate in Tasmania has pleaded not guilty to falsely advertising a riverside property in Franklin last year.

After a complaint by the general public, an investigation by Consumer Affairs Tasmania found that the land was in fact separated by a highway and two other pieces of land.  A further investigation found another two properties were also falsely advertised.

The director of the Real Estate said that the properties were close to the water and if buyers were interested in the property boundary information, they would be provided with the details.


shutterstock_236513557The recent decision by the Foreign Investment Review Board to force the sale of a $39 million dollar Point Piper mansion in Sydney has once again put the spotlight on to Australia’s foreign investment laws. Under existing laws, only a resident, citizen or temporary resident is eligible to buy an existing property. Foreigners are permitted to buy newly built properties (either houses or units off the plan) but prior approval is required.

The Point Piper property had been purchased by a company controlled by China’s 15th richest man and now has only 90 days to sell it for the best price it can achieve. Given the narrow group of purchasers in that price range, finding a buyer at the price might prove difficult within such a narrow window.

But to my mind, the bigger issue is whether our current laws are working in the National interest. At present, foreigners have to pay an application fee of about $10,000.00 when they apply for approval to purchase Australian property. That no doubt helps to fill the treasury coffers, but it must be a reasonable deterrent to purchasing property in Australia when the tax is imposed only on foreign residents. Add the $10,000.00 to the cost of stamp duty, Government fees, conveyancing expenses and Local Government taxes, investment in property is becoming less and less attractive. And that’s the issue! The property sector drives so many industries that benefit the economy. From building and construction to real estate, finance, even insurance and legal, what’s that doing for our rising unemployment?

I understand the need to protect iconic Australian assets from being lost to foreign interests forever, however I am not sure how the National interest is served by restricting foreign investment in residential property.

Travis Schultz
Practice Group Leader
Schultz Toomey O’Brien Lawyers, Part of the Slater & Gordon Group
Ph: (07) 5413 8900
Fax: (07) 5413 8958


Dividing property

shutterstock_150556397If your relationship breaks down, you may need to divide your property which includes yours assets (being things you own), liabilities (money you owe) and consider who gets what property.

Coming to an agreement about property is great, however seeking legal and financial advice is also recommended to ensure everything is settled. Most cases the law says it is favourable to resolve a dispute before having to go to court. If a decision cannot be made and the dispute cannot be resolved then you should seek assistance from family services.

We are here to help if you need assistance. Call our family lawyers today on 1300 STOLAW or visit our website

Are you thinking of selling your house this Spring?

shutterstock_137432012-resizedHere a few tips to help you prepare for a Spring Sale!

  1. Clean & Declutter
  2. Do a thorough inspection
  3. Eliminate odors
  4. Paint
  5. Finish projects & repairs
  6. Clean or replace flooring
  7. Freshen up fixtures & hardware
  8. Create a welcoming entrance
  9. Stage
  10. Get your real price.

Don’t forget we can help with you the buying or selling of a property. Contact STOLAW today on 1300 STOLAW or visit our website

Preparing to sell your property has a great checklist when you are preparing to sell your property.

  1. Make the decision to sell
  2. Prepare your property
  3. Choose an agent
  4. How to sell
  5. Determine your selling price
  6. Prepare the contract of sale
  7. Marketing your property
  8. Going on the market
  9. Negotiation or auction
  10. Under contract
  11. Settlement day.

You can read more on here:

Legal issues to consider when starting a business

legal-issuesWhen you are starting a business there are certain laws that you must consider and find out whether they apply to your new business. You may want to consult with a legal professional who can assist you with the legal requirements that you must comply with.

In order to stay compliant with your business, below are six legal issues you should consider.

  1. Business registrations
  2. Licences
  3. Privacy Act
  4. Anti-bullying Laws
  5. Independent contractors
  6. Unfair dismissal

For further information about these issues visit

To speak to a commercial lawyer, contact us today 1300 STOLAW or

Is Government Compulsory Acquisition Fair?

shutterstock_170955158-resized404pxThe entitlement of government and their agencies to compulsorily acquire land is a constitutional right but only if fair compensation is paid to the landowner.  And it is inarguable that governments should have this right because without it they would not be able to deliver infrastructure or efficiently address necessary planning issues, roads and provide services.  But what does concern me is the fairness, or lack of it, in the compensation that it provides to landowners.

The compulsory acquisition process generally results in a landowner receiving compensation based on a valuation prepared by a registered valuer but that doesn’t take into account the impact on a landowner from the point in time that notice is given that their land might be acquired.

Generally speaking, if a council or state government agency identifies that it might need to resume certain land, it gives a notice to that effect to the landowner.  From that point on, however, the property is generally unsalable on the open market because of the uncertainty over its future.  Often there can be a delay of several years between when a landowner is told that their land might be resumed and when it is in fact compulsorily acquired.  And while the landowner might ultimately be paid for the value of their land based on a valuation, why is it that the landowner is not compensated for the fact that they find themselves stuck in no man’s land, unable to deal with their property and unable to have the benefit of the sale proceeds for what can be a lengthy period.  I sometimes wonder whether this is an issue that needs to be addressed by legislation!

The same applies to heritage listing of houses and buildings.  Once a property becomes heritage listed, it generally suffers a diminution in value because of the restrictions that are then placed on its development, alteration or sale.  How is that fair to the landowner? And, if properties are to be heritage listed, should the owner not be compensated for the restrictions that places on future dealings with the property?

It’s an issue that is probably never going to personally affect most of us but if it does, I suspect we’ll all be asking the same question!

Travis Schultz
Managing Partner
Schultz Toomey O’Brien Lawyers
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Look After Your Trees

Look After Your TreesWhen the Queensland Government introduced the Neighbourhood Disputes (Dividing Fences and Trees) Act in 2011, it codified the common law position that the owner of land was responsible for all structures on it and that a tree on the property was considered a structure for which the landowner was liable.   Accordingly, the owner of a tree was always responsible for the maintenance and management of the tree and any damage it caused to an adjoining property.

Perhaps most commonly, a tree owner is found to be responsible for damage caused by aggressive root growth which can damage pipework, walls and structures of an adjoining property.  But liability can also extend to damage caused by falling limbs and branches.

Recently the Queensland Civil and Administrative Tribunal was called to adjudicate upon a claim made by one neighbour against another for damage caused to their garage when a limb of a gum tree came down in a violent storm in January 2013.

Whilst the Tribunal accepted that the neighbour’s concerns regarding the particular gum tree had been brought to the attention of their neighbour before the storm occurred, that mattered little because it was not necessary to establish negligence, The Tribunal held that the Neighbourhood Disputes (Dividing Fences and Trees) Act made it clear that  a tree-keeper is responsible for keeping a tree-keeper’s tree.

As a result, the neighbour that owned the tree was liable to compensate their adjoining neighbour for damage that the falling limb caused.

The decision highlights the need for landowners to be conscientious about having their trees inspected and maintained and to ensure that overhanging limbs are managed or removed.  It is no good trying to argue that you weren’t aware of the risk of a limb coming down because foreseeability is not an element of a cause of action based on this neighbourhood legislation.

Travis Schultz
Managing Partner
Schultz Toomey O’Brien Lawyers
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Thinking of buying a business?

Thinking of Buying a Business?Due Diligence

It is important to ensure due diligence is carried out before purchasing a business so you know exactly what it is you are buying. This helps with eliminating any risks that maybe associated with the business.

With the due diligence process it is best to look at a number of different aspects of the business including how it is operated, financial performance, legal and tax compliance, customer contracts, intellectual property, assets and other details. This process is normally carried out once you have made a deal with the seller but before you have signed any contracts.

Be mindful that all this information is highly confidential and the seller may want you to sign a “non-disclosure” agreement before they provide you access to this information.

 Legal and Tax

There are a number of legal and tax questions you will need to consider when buying a business. Areas you may need assistance with include:


  1. Terms and conditions of the agreement and your rights and obligations
  2. Property search regarding health, water and sewerage
  3. Pending legal proceedings against the business or seller
  4. Best ways to handle the finances, purchase and business structure


  1. Capital gains tax
  2. Stamp duty implications
  3. GST or other stamp duty implications
  4. How to value your assets for best tax advantage

Finance and Sale

It is important to review the business’s sales performance and financial data so best to consult a professional to help you. Below are a few examples of what they could assist you with.

Financial Records

  1. Financial records for the past 3 years, including balance sheets, profit and loss statements, tax returns, purchases and sales records and bank statements
  2. Assess whether there is potential growth and if the business is profitable


  1. Reliability of Sales
  2. Seasonal patterns
  3. Are more resources required?
  4. What are the salespeople like in regards to the success of the business?
  5. What is unique about the product or service?

Business Operations and Industry

By carrying out a detailed review of the business’s operations and industry environment can help to determine the seller’s reasons behind selling the business. Here are some items you might want to assess:

The Business

  1. Is the business suitable for what you want to do/achieve?
  2. Restrictions such as franchise as to how the business must operate
  3. Permission for the business to actually be running the way it currently is
  4. Procedure manuals
  5. Business Licenses / equipment licenses etc

The Seller

  1. Reason for the sale
  2. Will there be training from the seller after you buy the business?
  3. Is there a trial period to work in the business before buying?

The Industry

  1. Is the business in a high growth industry?
  2. Is their possibilities that competition could increase and impact on the business further?
  3. Should the same suppliers be used?
  4. What are the supplier’s business credit ratings?
  5. Are the suppliers in any type of contract with the business?


  1. Is the location of the business good or poor?
  2. Are there any changes to the local area that may affect the business?


  1. Is there a lease in place and can you continue under that same lease or does a new one need to be drawn up?
  2. What are the terms & conditions regarding the lease agreement?
  3. Who is the landlord and what are their rights and responsibilities?


  1. Are all staff on contracts? Who is permanent/casual etc?
  2. What are the staff wages and salary packages and are what award are they under?
  3. Do staffs require any specific licences/ ongoing training?

Business Assets

You should assess the business you are going to buy and ensure you know what the tangible and intangible assets are. It is a good idea to know exactly what you are buying with the business and what may not be included in the sale.


  1. Is there a checklist of assets and have you check them out?
  2.  Book value, market value and replacement value of the assets.
  3. If inventory is involved, what inventory is included in the sale?
  4. Intangible items can include mailing lists, business name, database, leases.


  1. Find out what the turnover of stock is.
  2. Has the stock been correctly valued?


  1. Is it in good shape? Does it need repairing? Is it a hazard?
  2. Is it expensive to repair? Are parts easily available?
  3. Is any equipment leased? What are the terms and conditions?
  4. What happens when the lease for the equipment expires?

Expenses and Debts

To ensure you are getting the most for your money, make sure you completely understand what the ongoing costs are to the business and if the business has any debts. If you have a comprehensive understanding before going into the business you shouldn’t receive any surprises once you have purchased it. Some areas to look out for or to ask yourself include:


  1. Are you aware of all the expenses? Will you incur all of these same expenses when you purchase the business?
  2. Could there be some expenses missing?
  3. Are the expenses being paid through another business?
  4. What expenses do other similar businesses have?
  5. Are there body corporate expenses?
  6. Advertising agreements that need to be honoured?


  1. Are there any debts associated with the assets? What are the repayment terms?
  2. Will the cash flow of the business cover any debts?

(Source: Queensland Government, Business & Industry Portal, Revised 16th may 2014,

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

If you are thinking of buying or selling a business, contact our team today and they will be able to assist you with all aspects 1300 STOLAW or