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General Questions

Is engaging a lawyer expensive?

Engaging a lawyer can be expensive. However, entering into some situations without legal assistance can be more costly. That's why its important to find the right lawyer for the situation. To discuss the merits of your legal issue with an experienced lawyer feel free to contact us here.

In which areas of law does Armstrong Lawyers practise?

Armstrong lawyers provides quality legal advice in the following areas:

What happens at my first consultation?

It depends on how we can help you in your situation, normally we will ask you for information about your legal issue, take you through the relevant law and then advise you of the practical and commercial considerations. We will try and give you a few options for you to consider and see how we can best guide you through this important time.

What can Armstrong Lawyers offer me over other firms?

Aside from having three highly-skilled lawyers with experience in a wide range of law, Armstrong Lawyers offers the individual client contact and value for money that can only be obtained from a smaller firm.

Can disputes be settled outside of court?

Armstrong Lawyers will attempt to find the solution that works best for you. Very often, this will involve handling the case without recourse to the courtroom.

Do I have to continue using your services after the first consultation?

No, all of our first consultations are no obligation, so if you do not want our help after the first consultation there is no obligation to provide further instructions to us.

Where are your offices located?

We are located at:

Level 7, North Tower
459 Collins St
Melbourne, VIC 3000

(This is at the corner of William St and Collins St)

What is the best way to get started?

Call our offices during business hours to discuss the suitability of your case. Alternatively, you could send us an email detailing your legal issue.

Level 7, North Tower
459 Collins St
Melbourne, VIC 3000

Phone: 1300 724 395
Fax: +61 3 9629 5744
Email: office@armstronglawyers.com.au
Online Enquiry

Where do I go to get information on the law, or copies of legislation?

To begin with, a very good source of legislation is the Australasian Legal Information Institute (AUSTLII) database - http://www.austlii.edu.au/

Litigation

What does 'litigation' mean?

Litigation is an action brought before the court where the plaintiff seeks a legal remedy.

How would I go about suing someone?

Contact the team at Armstrong Lawyers. We will discuss with you the suitability of your claim, and any action you may wish to take.

Does Armstrong Lawyers advise on litigation?

Armstrong Lawyers handles litigation in the Magistrates Court, the County Court, the Supreme Court, the Federal Court and the Federal Circuit Court. We have successfully dealt with disputes of all sizes in both courts and tribunals.

For advice on our ability to handle your case, or to organise your free consultation, click here.

Will Armstrong Lawyers go to court for me?

As part of the process of handling your case, it may be necessary to go to court. If this occurs, the process may be handled by one of the Armstrong Lawyers team, or a barrister may be briefed.

Does Armstrong Lawyers handle non-commercial litigation?

Armstrong Lawyers handles non-commercial litigation in some limited circumstances. For advice on our ability to handle your case, or to organise your free consultation, click here.

Will I have to come in to court as well?

If your case goes to court, you may wish to view the progress of your case, although this is not necessary. However, if you are required as a witness, your presence will be necessary on that particular day/s.

Does Armstrong Lawyers handle commercial litigation?

Armstrong Lawyers handles many areas of commercial litigation, such as:

  • Shareholder / Partnership Disputes
  • Breach of Contract claims
  • Trade Practices claims
  • Debt Recovery matters
  • Property disputes
  • Employment disputes

 

For more information on how we can assist you, feel free to visit our Commercial Litigation page, or click here to organise your free consultation with us.

Commercial Law

What areas does commercial law cover?

Commercial law regulates corporate contracts, hiring practices, and the manufacture and sales of consumer goods.

What does it mean if a contract is 'voidable'?

A contract is voidable if one of the parties has the option to terminate the contract. The contract will not be void until one of the parties exercises this right.

What does it mean if a contract is 'unenforceable'?

If a contract is unenforceable, neither party may enforce the other's obligations.

What does it mean if a contract is 'void'?

If a contract is held to be void, the contract is considered never to have come into existence.

What is commercial law?

Commercial law is the branch of law that covers business and commerce. Armstrong Lawyers are experienced advisors on commercial law matters.

Do you handle commercial law issues?

Yes, we handle many types of commercial matters, including contractual issues concerning:

  • trading terms
  • sale & purchase of business
  • shareholders' agreements
  • partnerships
  • employment agreements
  • joint ventures

For more information on how we can assist you, feel free to visit our Commercial Law page, or click here to organise your free consultation with.

Does a contract have to be written?

In some situations, no, a contract doesn't have to be in writing. Contact us at Armstrong Lawyers to discuss this in relation to a legal issue.

What is a contract?

A contract is a "promise" or an "agreement" made of a set of promises. Breach of this contract is recognized by the law and legal remedies can be provided.

Employment & Industrial Relations

What impact does s 51(xxxv) of the Australian Constitution have on labour laws?

This section provides that the Federal Parliament has the power to make laws "subject to this Constitution" "with respect to" "Conciliation and arbitration for the settlement and prevention of industrial disputes extending beyond the limit of any one state."

What areas of Employment and Industrial Relations law does Armstrong Lawyers cover?

Our lawyers have expertise in the following areas:

Employment Agreements

  • Individual employment agreements
  • Enterprise bargaining agreements
  • Fixed term employment agreements
  • Employment agreements for casuals

Contractor Agreements

  • Fixed term or fixed task
  • Assignment of ownership of intellectual property

Employment policies and procedures

  • Advice in relation to and drafting of employment policies and procedures e.g. use of internet, harassment, use of company vehicles.

Termination of employment

  • Advice and strategy
  • Negotiating and drafting Deeds of Release
  • Representation in matters related to dismissal from employment

Taxation

  • Pay As You Go withholding
  • Superannuation Guarantee Charge
  • Payroll tax
  • Workcover
  • Personal Services Income

General

Within the employment and industrial relations area we provide a full range of services - dispute resolution and litigation, negotiating and drafting agreements, commercial advice.

 

For more information on the types of Employment Law services we offer, feel free to visit our Employment Law page, or click here to contact us if you need assistance with your matter.

Property Law

What does 'freehold' mean?

A special right granting the full use of real estate for an indeterminate time. It differs from leasehold, which allows possession for a limited time. There are varieties of freehold such as fee simple and fee tail.

What is the difference between a fixture and a chattel?

A fixture is a permanent part of the property while a chattel is not. A big difference between the two is that a fixture is sold as part of a house or property, whereas the original occupant takes a chattel with them.

What does 'leasehold' mean?

A special kind of contract between a property owner and a person wanting temporary enjoyment and use of the property, in exchange for rent paid to the property owner. Where the property is land, a building, or parts of either, the property owner is called a landlord and the person that contracts to receive the temporary enjoyment and use is called a tenant.

What is property law?

Property law is the area of law that governs the various forms of ownership in real property (land as distinct from personal or movable possessions) and in personal property.

In what areas of property law does Armstrong Lawyers have expertise?

Armstrong Lawyers advises on many areas of property law, but in particular our expertise includes:

  • Sales / Purchases / Off-the-plan
  • Residential
  • Commercial / Industrial / Retail
  • Leasing / Development
  • Construction

 

Visit our Property Law page to see how we may be able to assist you, or click here to organise a consultation with us.

Does Armstrong Lawyers have many clients seeking advice for property transactions?

Yes, Armstrong Lawyers works with many property developers, individuals, corporate landlords and tenants by providing experienced advice in respect of buying, selling, and developing real estate. We deal with transactions on an individual basis so as to meet the aprticular needs pof clients by esuring that their contractual interests are protected and that relevant taxation issues are properly dealth with.

 

Visit our Property Law page to see how we may be able to assist you, or click here to organise a consultation with us.

Why does property get refered to as a 'bundle of rights'?

Property is commonly thought of as a thing which belongs to someone and over which a person has total control. But, legally, it is more properly defined as a collection of legal rights over a thing. These rights are usually total and fully enforceable by the state or the owner against others. It has been said that "property and law were born and die together. Before laws were made there was no property. Take away laws and property ceases." before laws were written and enforced, property had no relevance. Possession was all that mattered. There are many classifications of property, the most common being between real property or immoveable property (real estate such as land or buildings) and "chattel", or "moveable" (things which are not attached to the land such as a bicycle, a car or a hammer) and between public (property belonging to everybody or to the state) and private property.

Franchising

What steps should I take before entering into a franchise agreement?

Before entering into a franchising agreement there are a number of steps you should take. These include, but are not limited to:

  • Investigating the financial viability of the franchisor company
  • Evaluating the future prospects of the product or service, in particular its price and quality
  • Understanding the way in which the franchise system will work
  • Calculating the cost of setting up and operating the business
  • Assessing the location and franchise territory particularly in relation to potential competition
  • Talking to existing franchisees of the franchisor company to verify representations made by the franchisor company particularly in relation to training, assistance and dispute resolution

How can a solicitor help with franchising?

There are a number of areas in franchising in which the assistance of a lawyer can be most valuable. These include advice on:

  • The legal documentation - including the franchise agreement, the lease, the business and trademark, and the disclosure documents provided by the franchisor company.
  • The Franchising Code of Conduct
  • Other legal controls over franchising - including the Trade Practices Act 1974 (Cth)
  • Taxation Implications
  • Termination
  • Assignment
  • Dispute Resolution

What are the disadvantages of franchising?

For franchisees, the main disadvantage of franchising is a loss of control. While they gain the use of a system, trademarks, assistance, training, and marketing, the franchisee is required to follow the system and get approval for changes from the franchisor. For these reasons, franchisees and entrepreneurs are very different.

It can be expensive. Because of standards set by the franchiser, the franchisee often has no choice as to signage, shop fitting, uniforms etc. and may not be allowed to source less expensive alternatives. Added to that is the franchise fee and ongoing royalties and advertising contributions. The franchisee may also be contractually bound to spend money on upgrading or alterations as demanded by the franchiser from time to time.

In response to the soaring popularity of franchising, an increasing number of communities are taking steps to limit these chain businesses and reduce displacement of independent businesses through limits on "formula businesses."

Another problem is that the franchisor/franchisee relationship can easily cause conflict if either side is incompetent (or not acting in good faith). For example, an incompetent franchisee can easily damage the public's goodwill towards the franchisor's brand by providing inferior goods and services, and an incompetent franchisor can destroy its franchisees by failing to promote the brand properly or by squeezing them too aggressively for profits.

What is franchising?

Franchising is a contractual relationship between the franchsior and the franchisee. The franchisor licenses the frnachisee to distribute and market the product or service and to use the business name or trademark for a fixed period for a fee or commission on sales.

Does Armstrong Lawyers advise on issues to do with franchising?

Yes, Armstrong Lawyers provides practical advice on details of franchise arrangements. We provide advice and assistance to Franchisors and Franchisees in respect of Franchise Agreements, Disclosure Statements and Franchise Disputes.

Visit our Franchising page to see how we may be able to assist you, or click here to organise a consultation with us.

What are the advantages of franchising?

Franchising offers franchisees the advantage of starting up a new business quickly based on a proven trademark and formula of doing business, as opposed to having to build a new business and brand from scratch (often in the face of aggressive competition from franchise operators). A well run franchise would offer a turnkey business: from site selection to lease negotiation, training, mentoring and ongoing support as well as statutory requirements and troubleshooting.

As long as their brand and formula are carefully designed and properly executed, franchisors are able to expand their brand very rapidly across countries and continents, and can reap enormous profits in the process, while the franchisees do all the hard work of dealing with customers face-to-face. Additionally, the franchisor is able to build a captive distribution network, with little financial commitment.

For some consumers, having franchises offer a consistent product or service makes life easier. They know what to expect when entering a franchised establishment.

Wills and Estates

Is it possible to challenge a Will after probate has been granted?

A grant of probate can be challenged by the filing of summons in the proceeding in which the probate was granted. However, the challenger has a heavy onus, being required to show the grounds for revocation of the grant and also an explanation for the failure to prevent the grant in the first place.

For more information, please visit our Challenge a Will page.

How do you remove an Executor (or Administrator)?

This area of law is governed by s 34 of the Administration and Probate Act. This section describes the situations in which an executor can be removed as being:

  • If the executor/administrator remains out of Victoria for more than two years;
  • If they desire to be discharged from this office;
  • If they are unfit or incapable to act in this office; or
  • If they have committed a breach of trust.

For more information, please visit our Estate Administration page.

What are the rights of beneficiaries?

Beneficiaries who are left a specific gift of land, money or goods are not entitled to obtain general information about the estate. They are however entitled to reasonable diligence from the executors. If a gift has not been transferred within a year of death, then an explananation should be provided.

How do you challenge a Will before probate is granted?

You can lodge a caveat with the Registrar of Probates much like you would with a transfer of land. However, unlike a caveat on land, this caveat will expire after six months if not renewed. With a caveat in place, the caveator is given notice and must file grounds of objection to a Will within 30 days of an application for probate. After the objection is heard, the matter is then referred for directions to the Practice Court of the Supreme Court.

For more information, please visit our Challenge a Will page.

Can you Challenge a Will?

A will can be contested or challenged when it is alleged:

  • The will was incorrectly executed or was tampered with
  • The will was executed under pressure from others or the will maker was incapable of making a will
  • The meaning of the will is unclear
  • Insufficient provision has been made in the will for a spouse, children or other people who the will maker had an obligation to provide for (Part IV Testator's Family Maintenane Claim).

Visit our Challenging a Will page to see how we may be able to assist you, or click here to organise a consultation with us.

What is a grant of probate?

When a person dies leaving a will, a grant of probate must be obtained from the Registrar of Probates in the Supreme Court. The grant of probate is a court order confirming the validity of the will.

When a person dies without a will, an application for letters of administration must be made instead.

These documents are required to collect the assets of the estate for the benefit of the beneficiaries. It is required for:

  • Access to the deceased's bank accounts
  • Obtaining the title of the deceased's property
  • The collection, administration and protection of the deceased's property

When can you challenge the Validity of a Will?

It is unlikely that a validly made Will will be overturned. Essentially, any challenge will revolve around whether the document that purports to be the Last Will and Testament of the Deceased is valid. The grounds on which such an assertion could be made may include the following:

  • a later Last Will and Testament has been made by the Deceased;
  • the document is invalid due to a failure to follow the correct formalities;
  • the Will has since been revoked;
  • the Will was altered after it was signed;
  • the Will was procured via fraud or undue influence;
  • the Deceased lacked the mental capacity to make the Will.

If this didn't answer your question, please see our Will Disputes section.

What are the tasks of an Executor/Administrator?

Typically the Executor is the person responsible for offering the Will for probate, although it is not absolutely required that he or she do so. The Executor's duties also include the disbursement of property to the beneficiaries as designated in the Will, obtaining information about any other potential heirs, collecting and arranging for payment of debts of the estate and approving or disapproving creditor's claims. An Executor also makes sure estate taxes are calculated, necessary forms are filed and tax payments made, and in all ways assists the lawyers for the estate. Also the Executor makes all donations as left in bequests to charitable and other organizations as directed in the Will. In most circumstances the Executor is the representative of the estate for all purposes, and has the ability to sue or be sued on behalf of the estate. The Executor also holds legal title to the estate property, but may not use that property for the Executor's own benefit unless expressly permitted by the terms of the Will.

For more information, please visit our Estate Administration page.

What is Probate?

This is the actual process of dealing with a Deceased's estate; specifically, identifying assets and arranging their collection, paying outstanding expenses, compliance with all legal requirements and taxation responsibilities, ascertaining beneficiaries, and distributing the deceased's assets in accordance with the Last Will. In doing so, Armstrong Lawyers provide advice as to proper method of making distributions of the estate, preparing administration accounts, and where necessary, setting aside moneys for underage beneficiaries and other beneficiaries without capacity. An executor's role has a high degree of responsibility and we can assist you in carrying out your duties.

For more information, please visit our Estate Administration page.

I have received inadequate provision under a valid Will, do I still have access to a Testator Family Maintenance Claim (TFM Claim)?

If a Will is valid, there may still be room for a party to claim that they have not received adequate provision under the Will as part of a Testator Family Maintenance Claim. The Administration and Probate Act specifies that any person for whom the Deceased had a responsibility to make provision can make an application to court to contest the Will. ‘Responsibility’ does not equate with ‘dependence’, and so the court may consider many types of family relations, and even long-term friends or carers, to be in such a position.

A focus of a TFM claim will be whether ‘inadequate provision’ has been made for the claimant. In general, a person can leave property through a will to whomever they please. This is a fundamental right of a member of a free society. However, a competing interest is the moral duty that a person should make adequate provision for the maintenance and support of those closest to them. The Court is given the task of deciding which interest is paramount in any given case. In practice, this gives the court quite a bit of discretion on this issue.

For more information, please visit our Will Disputes page.

What are Executors entitled to under a Will?

Executors can only make limited claims for the duties they perform. They are entitled to expenses incurred in carrying out the Will, and they may also make claims for executor’s commission. Executor’s commission is not an automatic right, but it is possible if the Will provides for it or if all the beneficiaries have agreed to it, or the Executor makes application to the Court for such allowance.

Other than these circumstances, executors are not entitled to reap any benefit under the Will.

For more information, please visit our Estate Administration page.

What is an 'executor of an estate'?

When you make a will you appoint an executor. Their role is to deal with your estate after your death. A beneficiary can also be an executor.

What is meant by mental incapacity to make a Will?

A Deceased may be seen to lack sufficient mental capacity to understand what they are signing if they are too young (that is, a minor) or mentally disabled. Such a claim is known as a 'Lack of Testamentary Capacity Claim', and if successful will result in the Will being invalid.

For more information, please visit our Will Disputes page.

What is a Testamentary Trust?

A Testamentary Trust is a device that allows for certain arrangements to be made in regards to a gift in a Will. Whereas a gift is a fairly blunt instrument, a trust allows for a trustee to be placed in charge of the distribution of your gift to the beneficiary. The terms of the trust are governed by the Will, and only come into existence upon the death of the testator/testatrix (the Will-maker).

For more information, please visit our Estate Planning page.

What is meant by procuring a Will by undue influence?

Undue influence is a legal concept referring to an inequality of power between two parties. In the context of a Will dispute, undue influence that results in a Will being signed that is contrary to the actual wishes of the Deceased may result in the invalidity of the will.

For more information, please visit our Will Disputes page.

What does altering a Will after it is signed do?

A signed Will is valid in the condition in which it was signed. Alterations to the Will must be made by way of a codicil to the original Will – simple alterations to the Will after its signing will not be included as part of the document.

For more information, please visit our Will Disputes page.

What happens if a later Last Will and testament has been made?

A Will generally contains a clause that revokes all prior Wills made by the author. For this reason, a Will can be challenged by establishing that there exists another Will made more recently by the Deceased. The more recent Will would supersede the previous Will.

For more information, please visit our Will Disputes page.

What is meant by 'intestate'?

When a person dies without a valid Will they are said to die 'intestate'.  Without a Will the decision as to who will benefit from your estate is beyond your control, instead being interpreted in accordance with the provisions of the Administration and Probate Act 1958.

For more information, please visit our Estate Administration page.

What is a Power of Attorney?

A power of attorney is an instrument that delegates your authority to make decisions to one or more people. Generally the attorney has powers to do anything which the donor could have lawfully done by attorney. This means that functions that cannot lawfully be delegated (eg making a Will or getting married etc), likewise can not be undertaken by the attorney.

An Enduring Power of Attorney (Financial) is commonly used as it uniquely will not become invalid upon your subsequent mental incapacity to make decisions. This makes it an ideal instrument to use to ensure that should you remain alive, but lack the ability to make effective decisions in regards to your estate, your appointed attorney can make them for you.

Other enduring powers include an authority to make decisions about medical treatment (Enduring Power of Attorney (Medical Treatment)), and the appointment of a sole guardian who can make decisions for your care should you lack the ability to do so (Enduring Power of Guardianship). A limited power of attorney that only operates for a period of time (General Power of Attorney) can also be created.

We can also provide advice as to revoking any power of attorney.

For more information, please visit our Estate Planning page.

Can Armstrong Lawyers handle an issue I'm having with my inheritance?

Yes, Armstrong Lawyers can help. Please visit our Wills and Estates page to see how we may be able to assist, or click here to arrange a consultation with us.

What if there is no will?

The Administration and Probate Act 1958 (Vic) sets out a formula (rules of intestacy) for how your estate will be distributed and to whom. In some circumstances, the result of dying without a will can be disastrous for your family or loved ones. Having a solicitor prepare your will ensures your assets will be distributed according to your wishes.

What is an estate?

At common law, an estate is the totality of the legal rights, interests, entitlements and obligations attaching to property. In the context of wills and probate, it refers to the totality of the property which the deceased owned or in which some interest was held.

What are the consequences of not writing a valid Will?

Without a Will the decision as to who will benefit from your estate is beyond your control, instead being interpreted in accordance with the provisions of the Administration and Probate Act 1958. When a person dies without a valid Will they are said to die 'intestate'.  

You cannot totally guard against challenges to the validity of a Will. However, a well drafted Will should provide an effective defence against claims. The converse is that poorly drafted Wills are easily challenged by those who feel they have a claim.

If this didn't answer your question, please see our Wills and Estates section.

What are the advantages / benefits of using Testamentary Trusts?

There may be a number of benefits in using Testamentary Trusts. Not least is the ability to organise more complex arrangements - in particular in the case of minors - to control the distribution of your property. The legal ownership of the trust is vested in the trustee, however the equitable right to the money is vested in the beneficiary. This arrangement can protect your money from creditors of the beneficiary, from malevolent third parties (eg parents / step parents), or from the beneficiaries themselves.

There may also exist some tax benefits in employing a Testamentary Trust in certain circumstances. A beneficiary under a Testamentary Trust can organise that their inheritance be shared between members of their own family. This means that the money could be distributed to those in the family with the lowest incomes, and thus the lowest marginal tax rates. In addition, a minor beneficiary receives trust income at normal adult rates, meaning they can take advantage of the tax free threshold.

For more information, please visit our Estate Planning page.

What happens if there is a failure to follow the correct formalities in making a Will?

There are many formalities to follow in writing a legal Will. These include signing and witnessing the Will properly. Failure to observe these formalities could result in a successful Will challenge later on.

For more information, please visit our Will Disputes page.

What estate management issues do Armstrong Lawyers arrange?

Armstrong Lawyers provides you with professional advice to ensrue that your assets are protected. Our objective is to ensure that any legal structure you employ is effective and will allow yoru assets to be dealt with in the event of your death, or change in personal circumstances, in the manner that you want. Our expertise includes:

  • Will / Will Disputes
  • Probate Law
  • Trusts
  • Administration of Deceased Estates
  • Powers of Attorney
  • Risk Management & Legal Structures

Please visit our Wills and Estates page to see how we may be able to assist you, or click here to arrange a consultation with us.

Who can make a will?

Any person over the age of 18 who has the mental capacity to understand what they are doing can make a will.

What is Estate Planning?

A Will distributes your personal property to the parties that you select. However, you may have more complex needs, in which case Estate Planning might become an option. This process includes the appointing of Executors of the Will, determining Power of Attorney arrangements, as well as establishing Testamentary Trusts over the distribution of your property.

For more information, please visit our Estate Planning page.