Ask a Question
Need to ask a detailed question about business law? Leave your question in the comment box below and we will get back to you with a comprehensive answer.
The questions you leave on this page help us to know what is important to our readers. Your name and details are kept in the strictest confidence.
Did you know that you can also chat live with a business lawyer in the chat window on the right?
13 Comments
Post a comment
Please advise – are rental bonds held over commercial properties subject to gst. ?
Lease is $100,000 +gst per annum, landlord has asked for 3 months bond, so need to know whether the bond is $25,000.oo or $27,500.oo
Thanks, Kathy
email: katzl.is@hotmail.com.
Hi Kathy,
Thank you for your question. The correct answer is that it depends upon how the lease is written.
I know that this answer is not very helpful, and it means you will have to review the terms of the lease. The term “bond” should be explained in the lease and the term “rental” should be explained. If the bond is said to be, three months rent plus outgoings plus GST, then there would be no doubt that both GST and Outgoings have to be included in the bond. If the bond says it is equal to 3 months rent but then “rental” is defined to include GST then again GST would be included.
There is no rule or standard. All leases are different, it depends upon what was negotiated at that start of the lease. I think that it is a fair thing to include GST in the bond because if there is a breach of the lease and the bond is used to pay rental then the landlord would need to remit GST.
I hope that helps.
Joe
Good morning to you
I have a very unique question and I hope you can point me in the right direction. My wife and I run a small petrol / convenience store in Cairns. I feel my wife and I have been done a wrong which has cost us around 20k plus a lot of sleep less nights over this issue.
around 18 months ago I was investigated by the ATO they noticed irregularities with my BAS which I have professional people do for us. to cut a long story short they sent forensic accountants out to check my system upon files been sent away it was found that one item out of the two thousand items we sell which was a flavoured milk had some how changed overnight from us paying the tax dept 25.4 cents GST for each item to the ATO owing us $254.00 for each item. I run quick books as my accounting software I am the administrator of the program. Now each item is either a GST or non GST item this item was entered as a GST item but what quick books did overnight was move the decimal point over one place this is something that cannot be done manually this went on for many months this led to the ATO owing us thousands.
the ATO accountants laid no blame on us they could clearly see this was noting we had done they said they had never seen anything like this before but we have had to pay the money back which we are still doing. I have printed out a report on the item which clearly shows it changing tax overnight. Now I wrote to reckon who sell quick books there answer was short and swift that your file has become corrupt I said to him how come only one item out of 2000+ has become corrupt that does not seem possible other things would be corrupt. To this he had no answer it seemed I was wasting his time. On speaking to other people later on they verified what I had said other items would have been corrupted as well. To me this is an easy way out for them no one would offer me a plausible explanation I felt like I have been giving the brush off.
I have been on quick book forums around the world asking if anyone had experienced this problem to date no one has. this has just about put us out of business we are struggling I feel we have been done an injustice and no one wants to accept responsibility the people who make this software should be held accountable for any errors like this that occur, you know the line they tot out all care taken but no responsibility accepted . I we had any blame in this matter in trying to cheat the ATO then we deserve everything we would get but when you are blameless it is a bitter pill to swallow. I guess I need to know from you should I pursue it any further or just lick my wounds and get on with life if you think this is too hard please tell me any answers you can give me I would be grateful
Hi Phillip,
I am sorry that I have taken so long to reply, we have been closed over the Christmas break.
If accounting software has not performed the function that it was purchased to perform and you have suffered resulting damage then you may have a claim against the provider.
There are however some traps that you need to be aware of and you should get formal legal advice before you do anything.
1. The risk of litigation. Even when you have a very good case, you may not win. In this case the provider is much larger and better financed than you. They have more resources to fight a long legal battle.
2. Litigation is time consuming and if you decide to take on the dispute it will distract you from your main business. This loss of focus can itself cost you money directly and indirectly.
3. Litigation is expensive. If you chose to commence proceedings then you may wish to use QCAT if that option is available to you, as the filing fee at the Tribunal is under $200. Please see this link. Proceedings in QCAT are often undertaken without the involvement of lawyers at the hearing which may suit you if you are pursuing a well financed defendant. The chance of appeal is also reduced. Please note that QCAT has a limit to the amount of the claim that you can make so you may have to give up some of your claim if you choose QCAT. You should also consider the risk of losing and then being ordered to pay the costs of the defendant. This happens less often in QCAT but, it is still a significant risk that you should consider.
4. Did the software provider cause your loss? This will be the issue that requires most of your focus and it is not as simple as it may sound. The provider may have been involved in an error or fault however this is not enough. You may have suffered loss but this is not enough. The error made by the provider must have been the cause of your loss. You must place yourself in the shoes of your opponent. How will the defendant run their case! Where are your weaknesses? It is very likely be the case that the provider will argue hard that you caused your own loss and this can be a very good defence unless you can show the connection between your loss and the fault of the provider.
5. Courts and Tribunals need evidence to make a decision. The more good quality evidence, the better. Keep the focus on good quality evidence as if you submit material that is not helpful, the judge may miss the good bits. You will need to provide paperwork and evidence from an accountant that shows that the error from your provider caused your loss. The paperwork will also need to prove the extent of that loss.
Please advise. If you have a business sale contract in Tasmania, how long is it valid for? For example, if a purchaser wants to dispute a term in the contract. It has been 3 weeks after the contract was signed. 2 weeks of that was training the new purchaser. The contract doesn’t stipulate a period of time. Is there a standard time frame?
Thank you
Lynden,
A business contract can take an unlimited number of forms. Lawyers may construct a business contract specifically for a transaction that is complex. It is impossible to provide advice in relation to the terms of a business contract without actually seeing that contract. In any event we are only able to accept instructions for business conveyancing in Queensland. There are many state laws that govern business conveyancing and each state is different. In Queensland the REIQ have developed a standard business contract. This is useful as all commercial lawyers in the relevant state know those terms and so can provide advice on the contract quickly. It may be the same in Tasmania. Any standard form of contract should prompt the user to insert the relevant dates.
In general, contracts, will specify that certain things have to happen on certain dates. If time frames are not met, then the parties will have rights that they may be able to exercise. You must read the contract to find out what those rights are. In some cases these rights may include a right of termination of the contract.
You say ” the contract doesn’t stipulate a period of time” A period of time for what? If I assume that you mean that there is no date for settlement/completion of the contract, then this seems to be an error. You should be seeking full legal advice immediately. The earlier you get that advice the better chance you have of enforcing your rights.
Good luck.
Hi there
Thank you very much for your response, I will investigate further
Cheers
Hi, My daughter recieved a phone call from a police officer saying that an under cover policeman caught her changing lanes in front of him with out an indicactor. So the police officer from the police station sent here a fine out. As she was not pulled over by the under cover policeman, Can the station policeman fine her? Is it his word agains my daughters?
Kind regards
kathy
Hi Kathy,
Thank you for your question. We work in business law only. I don’t know very much about traffic fines and the way they work. The fact that a fine has been sent, tends to suggest, that the police are able to send out a fine after the event. It is however in my opinion not a very good policy. You may wish to question why your daughter was not pulled over at the relevant time. If she had been pulled over, then she would have had an opportunity to reflect on the event and respond. As you point out, the evidence supporting the fine may not be as good as it would normally be. Keep in mind, it is possible that there may have been more than one policeman in the car who can give evidence. You will need to assess whether contesting the fine is worthwhile.
Regards
Joe Riba
Good Morning,
I have a Question about a lease I signed for 5 years. I am now 3 years in the lease and want to get out of this lease. I have found out that the lease is not registered. We have asked them many times to register the lease but the lease cannot be registered due to some problem with the premises. I think its with council not 100% sure. Is this something you can handle or give us some advise.
Kind Regards
Tony Rahme
Hi Tony,
Your lease is for 5 years. The lease is required to be registered. There are good reasons for registering the lease. Some pressure should be applied to the landlord to resolve any problem which is preventing registration.
A failure to register the lease may also amount to a contractual breach of the lease by the landlord if a term of the lease requires registration. This is commonly the case.
The lease is binding on the landlord and the tenant even if it is not registered. A failure to register may not by itself provide you with a right of termination.
You should obtain legal advice and we are happy to assist you. Please make contact by telephone so we can let you know the further detail that is required.
Regards
Joe Riba
Hello,
Concerning an Act of Government, is the Act considered in force and legally binding before said Act is proclaimed? or, assented to?
I.E. This Act commences on a day to be fixed by proclamation.
Is this Act legally binding or in force or shall it only after it is proclaimed?
I am asking this question because I am going to Court for a traffic violation (Queensland) yet I can’t seem to find a document (other than the Queensland Constitution) that has been assented or proclaimed I.E. State Penalties Enforcement Act (as above) or Transport Operations Act (2.(1) Section 92 commences on assent. (2) The remaining provisions commence on a day to be fixed by proclamation.) Does this mean these documents have no effect?
However I am not sure if this really matters as the Constitution of the Commonwealth section 92 grants freedom of intercourse between states by means of internal carriage absolutely free of charge and, section 109 protects from inconsistencies between State and Commonwealth law, whereas where inconsistencies occur, the latter always prevails. Therefore traffic penalties/fees, tolls, etc. are void and invalid under the letter of the law.
I also note that when Bob Hawke attempted to bring in the Australia Act in 1986 (I think, illegally) and would have allowed equalisation of powers and enable the Commonwealth and the States to voluntarily refer powers to each other. However, researching Referendums on alterations to the Constitution of the Commonwealth, I discovered the submission to the electors of the proposed law for the alteration of the Constitution entitled ‘ Constitution Alteration (Interchange of Powers) 1984′ , was ‘not carried’ 3rd Sept 88.
After investing many hours and funds, having prepared a strong case for the defence, I am now concerned if the matter is Constitutionally valid to bring to Court in the first instance?
A Queensland Police Officer has no legal or constitutional right to issue any citizen with a fine for a civil commuting offence?
Rod Middleton
Hi Rod,
An act comes into force on the day that the act receives Royal Assent. If parliament wants to delay the date that the act comes into force then the act itself will nominate some date later than the date of royal assent.
A draft Act is called a bill. Politicians debate about Bills.
It is unlikely that a constitutional argument is going to work in a lower court.
This kind of matter is beyond our scope of work which is Business law.
Regards
Riba Business Lawyers