Buddha's words

Buddha's words
My inspiration. We are what we think, All that we are arises from our thoughts, With our thoughts we make the world. Photo copyright Sean Duggan

Thursday, June 4, 2020

Tan and Tan Lawyers celebrate serving the public at East Perth for 10 years.

Thursday, May 28, 2020

Covid 19 and its effects on commercial tenancies in WA

Dear Readers


Covid-19 Response Act and its Effect on Commercial Tenancies in WA

In response to the COVID-19 pandemic and its staggering impact on small businesses nationwide, the Federal Government of Australia introduced a Mandatory Code of Conduct for commercial tenancies (National Code). Subsequently on 23 April 2020, the Western Australian government gave effect to the National Code by passing the Commercial Tenancies (COVID-19 Response) Act 2020 (WA) (the Act).
This article will explore how the Act affects commercial landlords and tenants in Western Australia.

Does the Act apply to you?
The Act covers "small commercial leases" in the following categories:
·       retail shop leases, as defined in the Commercial Tenancy (Retail Shops) Agreements Act 1985
·       leases where the premises are used for a "small business", as defined in the Small Business Development Corporations Act 1983 (WA)
·       leases to incorporated associations, as defined in the Associations Incorporation Act 2015 (WA)
·       any other leases prescribed by regulations

Is there an expiry date?
The Act will be repealed a year after the end of the Emergency Period. The Emergency Period is the period beginning on 30 March 2020 and ending on a day prescribed by regulations, or if a day has not been prescribed, it will be assumed to end on 29 September 2020.

What are some of the key terms of the Act?
1.       Prohibited actions cannot be taken during Emergency Period

During the Emergency Period, a commercial landlord is prohibited from taking a Prohibited Action, such as:
·       evicting the tenant
·       terminating the lease
·       exercising right of re-entry or possession
·       calling on securities provided by the tenant such as a bond or bank guarantee
·       requiring the tenant to pay interest on unpaid monies
·       exercise any other remedy that may ordinarily be available to the landlord under law
if there is a breach by the tenant consisting of:
·       a failure to pay rent or other monies payable to the landlord
·       a failure to keep their business open at hours or times specified in the lease
·       any act or omission of a kind prescribed by regulations
Regulations may set out circumstances in which landlords would be allowed to undertake a Prohibited Action.


2.       Rent cannot be increased

Rent cannot be increased during the Emergency Period, other than rent that is determined by reference to turnover.

3.       Introduction of a WA Code of Conduct

The WA government has proposed a WA Code of Conduct (WA Code) to be adopted by regulation. The WA Code may adopt the National Code in part or whole, or may modify it.

It is expected that the WA Code will provide substance in terms of how the Act is to be implemented on the ground. Landlords and tenants in WA will have to abide by the terms of the WA Code once it is published.

Currently, it is unclear when the WA Code will be finalised but previous estimates indicate it may be at least 2 weeks away.


4.       Dispute Resolution

Both landlords and tenants may apply to the Small Business Commissioner to resolve via mediation a dispute that has arisen out of the operation of the Act, including a code of conduct dispute and a financial hardship dispute. If the dispute is unresolved, the matter may be referred to the State Administrative Tribunal (SAT).

A financial hardship dispute means a dispute where the tenant has breached the lease by failing to pay rent or other monies payable to the landlord, the landlord claims the breach was not a result of the tenant suffering financial hardship and the landlord has not granted a rent waiver, deferral or reduction to the tenant.

If the SAT is satisfied that the tenant's breach is not a result of the tenant suffering financial hardship, the SAT has a wide range of powers in granting relief to the landlord, including termination of the lease and equitable remedies.

What should you do next?
1.       Take an open-minded approach to negotiations

The Covid-19 pandemic has caused a widespread economic downturn and it is an important time to support each other via open dialogue and sustainable short and long term solutions. Landlords and tenants alike should be prepared to be candid in their communications, to negotiate in good faith, and to make concessions with a real focus on riding out the crisis together.




2.       Ensure that agreements are temporary

As the WA Code has not been finalised, and the circumstances are changing unpredictably, it is prudent to ensure that any arrangements or agreements made between the parties are short-term, and able to be varied as the situation evolves and when the WA Code is published.

3.       For tenants: be prepared to disclose

Tenants should be prepared to provide turnover and other information as required to the landlord to facilitate discussion.

4.       For landlords: do not unnecessarily delay discussions with tenants

The WA government introduced the Commercial Tenancies (COVID-19 Response (Early Termination) Bill 2020 (WA) to be implemented as a 'hammer' on landlords if there is evidence of widespread inaction by landlords in negotiating relief for tenants or for not bargaining in good faith. If passed, it could allow tenants experiencing severe financial distress to terminate leases without financial penalty.

5.       Check if you are eligible for land tax relief

The WA government has announced a land tax relief package of up to AUD 100 million for commercial landlords if they satisfy the eligibility criteria. To check eligibility and apply for the grant, visit https://www.smallbusiness.wa.gov.au/blog/land-tax-assistance-landlords.

6.       Speak to your lawyer

This is understandably a confusing time for landlords and tenants alike. It may be difficult to fully make sense of your rights and obligations particularly as they are evolving constantly. Your lawyer can advise you on how the Act affects you specifically, explain the options available to you, and assist you with negotiations to ensure you do not fall foul of the Act.

If you are a SME commercial landlord or tenant, contact us for assistance.

By Eileen Tay
Lawyer at Tan and Tan Lawyers

Thursday, May 14, 2020

New website for Tan and Tan Lawyers is launched


Dear readers
Tan and Tan Lawyers have launched their new updated website. Do visit the site and get free legal information from podcasts, videos and articles.

I am especially proud of the Company History section

Monday, May 11, 2020

Perth's First Drive Thru Notary service


Dear friends and clients,

These are challenging times. WA is on a partial lockdown of all but essential services.

At Tan and Tan Lawyers, we have kept a keen eye on making sure that there is social distancing when clients come to the office. We are also constantly disinfecting our office open surfaces.

To further improve our services, we have now progressed to giving a drive-through notary service.

If you are concerned about your health but still require documents to be notarised, please call our offices for a drive -through notary service.

The process will be:
1.       Send us by email,  a copy of the document to be notarised.
2.       We will prepare the notarial certificate and put Mr Tan's notary seal on the document.
3.       You then drive to the front of our offices at 6/78 Terrace Rd, East Perth WA at the appointed time where Mr Tan will meet you.
4.       It is best that you bring your own pen to limit contact.
5.       You stay in your car, show us your identification document, and then sign your document in front of Mr Tan.
6.       Payment will be made by credit card.


Take further note that any documents that need to be apostilled or authenticated at the Department of Foreign Affairs, can only be done by post.

The Department is not taking any face to face appointments and require all documents to be posted to them with a self-addressed envelope for them to return the documents to you.

Do stay safe everyone and remember we all need to fight this virus together by not being together.


Raymond Tan
Tan and Tan Lawyers
Notary Public

Wednesday, March 4, 2020

Are you interested in buying a business? If you are, consider the following points carefully as it can save you a lot of money and heartache.

Are you interested in buying a business? If you are, consider the following points carefully as it can save you a lot of money and heartache.

For those of you who are contemplating buying a business, I have the following 10 points for you to consider:

1. Never sign any offers to buy any business until you have received legal advice. The lawyer should help to draft your conditions of purchase that will protect you. If you see the lawyer after signing the contract to purchase, it will be too late to make changes to protect you.

2. Always ensure there is a clause to allow your accountant to check the figures. That makes sure that the business income is as represented by the seller. You will be surprised how often I get complaints from a buyer that they have been cheated by the seller as the turnover of the business has been exaggerated by the seller.

3. Make a list of all assets that come with the business. If the photocopier, vehicles or coffee machine are supposed to be included, make sure it is listed in the schedule. Find out if there is any equipment that has been leased and repayments are still needed to be made by the seller.

4. Ensure that you have a clause to allow you to opt out of the contract if the lease terms are not favourable. There is no point in buying a business if the lease for the premises is going to expire soon. Make sure you get your lawyer to read the existing lease terms to make sure that the terms are favourable.

5. Ensure that any employees that are going to continue to work with you have all their long service and other leave benefits paid out. If you do not check this point, you could end up paying a lot of money for a liability which is the responsibility of the seller.

6. Have a clause that allows you to check the business turnover just before you purchase the business. That means you want to sit in at the business and see if the customers are really spending as much as the seller tells you.

7. If the business is a franchise, make sure that the contract is subject to your lawyer approving the franchise terms. You should also ensure there is a clause that the purchase is subject to the franchisor taking you in as a franchisee on terms that you are happy with.

8. If you are borrowing money to purchase the business, make sure that you update the vendors regarding the finance approval. There should be a clause that states that if finance is not approved within a certain time, you can get out of the deal.

9. Discuss with your accountant what business structure you are going to use. This should be done before you even make any offers. Your accountant should advise you on what is the best tax structure you should use bearing in mind the income of the business.

10. Ensure that you are happy with your settlement date. Will everything be ready by then?

There are many other minor details which can make your purchase a breeze. When in doubt, speak to a lawyer.

If you need a Korean speaking lawyer, call our office to speak to James Jung.

Enduring Power of Guardianship and Advanced Health Directive


Enduring Power of Guardianship and Advanced Health Care Directive
In Western Australia, an Enduring Power of Guardianship ("EPG") is a legal document that authorises a person of your choice to make important personal, lifestyle, and treatment decisions on your behalf should you ever become incapable of making such decisions yourself. This person is known as an enduring guardian. An enduring guardian can be authorised to decide about matters such as where you live, the support services you have access to, and the treatment you receive. An enduring guardian cannot be authorised to make property or financial decisions on your behalf.

What kind of decisions can an enduring guardian make?
       Where you live, who you live with, and who you associate with.
       Whether or not you work.
·      Makes treatment decisions on your behalf.
·       Decides what education and training you receive.
·       Commences, defends, conducts, or settles any legal proceedings on your behalf, except proceedings that relate to your property or estate.
·       Advocates for, and decides about, the support services you access.
·       Seeks and receives information on your behalf.

Like the Enduring Power of Attorney, you need to decide who is the best person to decide for you. If in doubt, speak to a lawyer. The appointed ensuring guardian may decide that they do not want to allow a friend or a relative to visit you in your nursing home. Choose your enduring guardian with great care.

Advanced Health Care Directives
            An advance health care directive is a written statement made directly to medical personnel about the treatment you want or do not want to receive if you ever become incapacitated and incapable of communicating your wishes. The treatments include medical, surgical, palliative and dental care. It also includes life sustaining measures. These are decisions that may be crucial, and you need to decide who is to make those decisions.
An advance health care directive is ineffective after death. Therefore, you cannot record your wishes about organ donation in such a document.



Duties as an enduring power of attorney


You have been appointed as an attorney under an Enduring Power of Attorney.
What are your duties?

Of course, you have to agree to be appointed as an attorney before the appointment can be effective. Sometimes, the Enduring Power of Attorney ("EPA") also states that the appointment will only take effect after a declaration is obtained from the State Administrative Tribunal ("SAT") stating that the donor is incapable of making decisions for themself. The SAT then makes an order that you are now legally the attorney for the donor or the person who appointed you. 

So what are your duties as an attorney under an EPA?

Your duties are set out in Section 107 of the Guardianship and Administration Act 1990. They include:
·  
     Exercising your power with reasonable diligence to protect the interests of the donor. So, you cannot take money from the donor's account and go on a shopping spree.
·       Keeping accurate records and accounts of all your dealings and transactions. If you fail to keep proper records, you may be prosecuted and fined.
·       Informing the SAT if you become a bankrupt.
·       Making an application to SAT if you wish to be removed or cease to act when the donor has lost capacity.

It is advisable to discuss your proposed actions with the donor if the donor is still able to provide a view or opinion even if they have lost capacity. So for example, if you think you should move the donor to a nursing home, you may still wish to bring the donor to a few of the proposed homes to see the donor's reaction. Sometimes, you may also wish to discuss your proposed course of action with other family members of the donor.

Once you are appointed, it is best to check that you have obtained all the relevant financial information relevant to the donor. You should also check what expenses the donor has so as to make sure the expenses are managed properly.

If you are unsure as to what needs to be done for your donor, do speak to a lawyer for advice. It may be that an application may need to be made to SAT for directions if you are uncertain as to whether your proposed action is proper.