I’ve been seeing a common issue with trust deeds lately. Often, clients’ wishes don’t come to fruition because of a key oversight when setting up the trust—misunderstanding the vital role of the Appointor.

In this video, I explain what the Appointor does, why it’s so important, and how you can make sure your wishes are followed by getting this right.

If you have any questions about trusts, trust deeds, or estate planning, drop by Millens. We're here to help

I recently heard a story that highlights the importance of understanding lease transfer regulations. A potential business sale was jeopardized because the landlord objected to the age of the proposed lease transferee. Don't let a bad landlord spoil your deal!

In our latest video, I share two crucial tips to prevent such issues and ensure a smooth lease transfer process.

This one's for all you commercial landlords and tenants, because there's been actually quite an important decision in the Victorian courts about what happens in leases.

Now, sometimes you hear about the landlord having to repair and maintain a commercial property. Now, what the court decided was... Repair, everyone understands that, something breaks, you repair it. But what does maintain mean? And so, what they said for maintain was that it was a positive obligation to keep maintaining the property and having a maintenance plan. So, let's say something that maybe needed to be checked every 10 years, you need to check it every 10 years, but there might be things you need to check every year, and so, you have to have a plan to check it every year or else you're not maintaining the property. So this is, I think, a bit of a surprise to landlords, that they actually have a positive obligation in commercial leasing to have a plan to maintain the property. And if they don't, then they're technically in breach of the lease.

Now, in this case, it was very extreme, but it was an office building where potentially the structure of the building was unsafe, and the tenant stopped occupying the property and wrote many, many letters to the landlord, sent a report, and the landlord just ignored it all. What happened? The tenant stopped paying. Said, "Look, you, the landlord, have walked away from this lease," and the court agreed with them. So, they were able to get out of their lease and get damages from their landlord. So, that's a lesson for everyone, whether you're a tenant or a landlord, that the landlord has obligations to maintain the property.

Now, we've prepared what I'm sure is a highly interesting note about all this, and if you want it, just contact us below and we'll send it to you. So, for all your commercial leasing needs, remember to contact me, Ross Millen, or any other member of the Millen's team, and we'll be able to help. Thanks for listening.

Hi. I wanted to mention a topic we don't often discuss on these little videos, the F word. Yes. You know what I'm talking about? Fraud. Fraud in the workplace. And over the years, unfortunately, for some of our clients, we've had to handle fraud matters where we've recovered or attempted as much as we can to recover funds back from employees who've been running some sort of scam or scheme within the organization.

Now, what prompted me about this this week was I was reading in the paper about a woman who'd been convicted for doing just that with her employer, and certain things stuck out as being typical of what happens in this unfortunate situation. First of all, a highly trusted employee who had been allowed to manage, paying all the expenses without anyone checking. They were such a good employee, so organized, everything was done so smoothly that no one ever bothered to check whether, in fact, half a million dollars of those expenses were being paid, in fact, to herself. So over the years, she'd scammed five or $600,000 out of the company. So trusted employees.

The other thing was she was such a diligent employee, never took a holiday. And of course, people who are committing a fraud, they don't like to lose control, so they never take their holidays. They're always there at work, they're always in control. So it's a very good idea to make sure that your employees, particularly if they're handling money in your organization, always take their annual leave and that there's always a second person checking, or there is some sort of spot audits or other steps taken.

This will discourage people from conducting fraud. So even if you have people who think, "I'll do a fraud," if you've got these checks and balances in place, makes it very difficult for them to start in the first place. So remember, if you've got any queries, contact me or contact any of the other team members at Millens. We are here to help you running a fraud free business. Thank you.

Hi. One thing that some people may not have heard of, or if they've heard of, they haven't quite understood, and that is a bit of jargon we use, the PPSR. Well, what does that actually mean? It's a Personal Property Securities Register. And this is a place where you can register charges that you might hold over other people's assets, or people register charges over your assets.

Now it's very important to have registration, otherwise it won't be enforceable if someone goes broke. Now, a very interesting thing, I had a client who was selling a company and I said, "Well, have you got any of these PPSR charges?" And they said, "No, we've never borrowed any money. We've got none." But of course, we did a search just to make sure. And there were several things registered against them. These were because often when you're signing supply agreements, or terms and conditions, maybe it's just someone who's providing air conditioning equipment or some other type of equipment, often they'll have a PPSR charging clause in their standard agreement. And then they register this.

So we had to get all of those discharged. Often we have people who are handing over their goods like a landlord or someone else, and they don't register their interests on the PPSR register. This means that if their tenant or the person who's holding their property goes broke, they've got very little chance of getting it back. So PPSR, if you've got any issues contact me, contact the Millens team. We can help you with a PPSR search to see what you've got on your company. And also we can advise you about how you can register your interests against people you do business with.

We know that our clients don't like surprises. So recently, it was a shame, but a couple of our clients had a surprise that they weren't expecting. And what was the surprise? Well, the surprise was that the terms and conditions they were using in their business didn't say what they thought they said. For instance, we had someone; it was like a building situation, and our clients said, "Well, these people haven't paid us. We're going to suspend the works." And we said, "Well, you better send us your terms and conditions, and we better have a look what the contract says." And we looked at the terms and conditions, and we rang the client. We said, "Well, that's great, but your terms and conditions do not give you the right to suspend the work in these circumstances." The client said, "Oh, of course it does."

And we said, "Okay, no problem. Which clause wasn't there?" So for years, they'd used those terms and conditions, thinking that's what they said, didn't say it at all. We had another situation where someone had goods, and they said, "Oh, we're going to sell them now." And we looked at the terms and conditions and said, "Unfortunately, that's not there." So again, here was a situation where someone for many years had been using these terms and conditions, thinking all the time that they said what they thought they said, but they didn't say it at all.

So again, emphasize, if you're in business, you need your terms and conditions to be reviewed on a regular basis, and make sure they say what you want them to say. Also, there's been a lot of government legislation recently about what are called unfair terms and conditions. These are things like your automatic right to increase rates or certain other things like that, or restricting the right of the customer to terminate the contract. So make sure your terms and conditions say what they should say, and also that they're up-to-date and that there's no legal problems. So we're very good at reviewing terms and conditions. Give us a call, Millens. I'm Ross Millen, and the team. We are here to help you doing business better.

We've had a couple of people buying businesses recently, but rather than actually just buy the business, what they've been doing is buying the company that owns and operates the business. So they're basically buying all of the shares in a company.

Now, this will only work, of course, if the business that you want to buy is really the only asset of that company. But buying a company, buying all the shares in a company to get control, you really need a great set of warranties, because I liken this to changing drivers in a moving car, the business is operating suppliers, debtors, payments, leases, everything. You sort of take it over, but you take it over as it is. So you've really got to step into the driver's seat, and you've got to make sure that everything's fine, because you don't want to be three months, six months down the track and suddenly find there's some claim that is against the company you now own and operate that company, and you're responsible for the claim.

So when you're buying the shares in a company, you need a really good agreement and you need a great set of warranties, and Millens has got both. So we're able to help you. So remember, if you're thinking of buying a business, maybe there's the opportunity to actually buy the company that runs the business, and that could be a great advantage to you because you keep everything running in the same name. So remember, if you're looking to buy a business, looking to buy a company, contact us. We're here to help. Ross Millen from Millens.

There are two main examples where someone's Will might be set aside partly. Now, the first is if someone makes a will or a new Will when they lack what we call testamentary capacity. If someone's got dementia and another family member takes them and says, "Oh, you know what? We're going to cancel your old Will and leave all the money to me," well, obviously that's an example where we can come along and help people to challenge your will because it's been made by someone who lacks the necessary mental capacity to make a new Will. They're often cases of undue influence. Medical certificates can be used later as evidence to show that someone had been suffering dementia.

Now, the second example, and this has got thousands of years of history about it, is that if someone dies and they don't leave an adequate provision for someone who they had a moral duty to look after, then that person can say to the court, "I didn't get left enough money." So if someone died and left all their money to the cat home rather than to their spouse and their young children, naturally everyone would say, "Well, those people need to go and challenge that will and get more money for their proper maintenance."

Now, in Victoria, there's a very limited number of people who can make such a claim. It's your spouse or a de facto, a former spouse or a de facto, children, registered carers. It's a very narrow group of people and they have to show the court that there was some moral duty to look after them, and also that their financial circumstances mean that they're entitled to get more out of the will than what it says.

Now, we have a lot of expertise in this area. We've defended claims and we've brought claims. So if you've got any queries whatsoever about a Will or your current Will or your estate plan, don't hesitate to contact us. I'm Ross Millen from Millens leading the Millens team in wills and estates. Thanks very much.

We have a bit of a problem in Victoria, we've got a brand-new tax. Now, you mightn't have heard of this, and it could be a big worry if you're a property owner. It's not a new tax, but it's been expanded so much that it's now going to catch hundreds, thousands more properties. This is called the Vacant Residential Land Tax, and new legislation came in only in mid-December, but it applies this year.

In this short video, I talk about what this means and the exemptions that might apply to you.

To help you Millens have prepared a Vacant Land Tax Guide to get it - click here

Watch the video below to find out the resolutions that are done by savvy business people. If you don't plan then you are not going to reach your goals in 2024.

In this video, I talk about how mid-December and the countdown to the Christmas break provide a great opportunity to finish things that have been dragging.  We often find people are willing to try and tie up loose ends on a deal just before the holiday. So now's a good time to negotiate, particularly if it's been a difficult negotiation or maybe you're just not quite getting some cut through on a difficult deal.   Remember the other side is probably a little bit tired, maybe they're really keen to wrap something up. So always use this week or two before Christmas as a great opportunity to try and finalize that deal that's been dragging along for months.

In this video, I explain the power of a warranty. What can go wrong when you don’t get it right? How to have the best set of warranties to protect your business investment.

If you have any questions, remember we've got a lot of experience with drafting and negotiating warranties. We can help you prepare a set of warranties that will protect you. Contact me here

In this video, I discuss the importance of restraints in business agreements, particularly in the sale of a business or in shareholders' agreements. The purpose of restraint is to prevent the vendor from opening a similar business nearby or competing with the business that has been sold. There is nothing worse than buying a business and a family member sets up shop down the road. To get strategic tips to make the restraint effective watch the video below.

Ross Millen:

Yes, it's Halloween, time to think about those blood-sucking zombies. Yes, you know who I'm talking about, don't you? Your undeserving relatives. Now, you've probably heard about Testator Family Maintenance. That's where someone can challenge your will. And we do a lot of that work at Millens, both challenging unfair wills and advising people how to draft their will and their estate planning to future-proof their will. There'd be nothing scarier on Halloween than thinking that what you provide in your will is actually not what happens. That the people, the beneficiaries you want to receive certain assets or certain amounts of money don't receive them, and instead, perhaps undeserving relatives receive it instead.

Now, we're thinking, in this day and age, of children who you may be estranged from. We've had a situation where there's children that have actually stolen money from their parents. And the parents are terrified, they're scared, not just because it's Halloween, but when they die, perhaps those undeserving children will be able to challenge the will and get more than what the parents want them to have.

Now, we've got a very effective department here that advises. And there's two key things. Making sure that your estate plan and your will provides necessary explanation when someone's not included, and also, another thing is if you transfer some assets now, then obviously they don't form part of your estate and therefore they can't be the subject of a claim under your will.

So if these are things that are worrying you, keeping you up at night, particularly on Halloween, then contact us. We can help you design an estate plan that's going to work, and you can be comfortable knowing that Millens has helped. So remember, any questions, contact me at Millens, or one of our team, and we're only too happy to help you and put your mind at rest. I'm Ross Millen from Millens. We're here to help. Thanks.

Ross Millen:

Hi. Some people have asked me, "What are the current changes that are going to be made by the state government to land tax and also this thing called vacant land tax?" So it hasn't been passed into law yet, but it probably will be, and it's all going to come into force from the 1st of January next year. Now, the first thing about land tax is that, of course, when you buy and sell property that's got land tax on it, it's normally adjusted like rates. Now it won't be able to be adjusted. So if you've got a property with a lot of land tax on it, you won't be able to ask the purchaser to pay some of it. So bear that in mind when you're setting the price at which you're willing to sell the property. Most residential properties that are principal places of residence don't have land tax, so that's not an issue. But commercial and other properties or investment properties could have land tax and you might end up actually getting less from your sale than you expected.

The other thing is vacant land. Now to date, there's been very few properties that have been assessed for this, but the government under a lot of pressure about opening land up for development, is going to start expanding the properties that are subject to this vacant land tax of 1% and not of the unimproved value, but the capital value of the property. Of course, if it's vacant land, well presumably there's nothing built on it, that won't be a problem. But it's going to be an additional state tax that you're going to have to pay if you've got undeveloped residential vacant land.

So whether you've got properties like that, you want to check whether they're going to be subject to this tax, what are the strategies you can follow to make sure that you won't be subject to the tax or whether you need to dispose of these properties or to build something on them. Contact us. We're here to help, we can explain to you what the changes are going to be. So I'm Ross Millen from Millens, give us a call, we can explain to you what the new state taxes on land are and how they're going to affect you. Thanks.

Ross Millen:

Hi. Well, spring has certainly sprung. It's sunny, it's getting warmer. Who would believe it's Melbourne and there's football finals? But spring is also a good time to do spring-cleaning. And by spring-cleaning, I mean a legal spring-cleaning. I had a client the other day came in and said, "I've got several properties. They're all in the name of this company. Can you just check the address?" And when we did a title search of them all, we found out that some of the properties were in fact in another company name. And I said, "No, your properties are in this company and this company, and even a third company." He was amazed. He said, "I always thought they were in this." So a bit of spring-cleaning can make sure that everything is as you expect.

We had another client who said, "I'm going to give some of my employees shares in the business. I currently own 100 shares, and I'm going to give them five and five and five." So we did a company search. Well, there's 120 shares and they're held by him, his wife, the two of them jointly, a family trust company. So he had it completely wrong about what the share ownership was in his own company. So if you get us to do a spring-clean for you, we can search your titles, we can search your companies, and we can make sure all of the information, all of the addresses, everything is correct.

So remember, if you want to spring-clean your business, contact me, Ross Millen, or anyone else at Millens, because we're here to help you. Thanks.

Hi. I had a client the other day who contacted me and said, "We're entering into some discussions about a potential new business venture. We've got some really great and very valuable intellectual property and we're talking to someone else about how we can commercialize this and maybe form a joint venture or a new business," and I said, "Well, have you got some sort of non-disclosure agreement or confidentiality agreement?" And there was silence. He said, "Well, what are you talking about?" I said, "Well, you don't want to give away if you've got secret information, confidential information that you've spent maybe hundreds of thousands of dollars developing. You don't just want to let someone else know all about it without having some contract with them."

So we prepared a non-disclosure agreement, and basically, all they say is that, "We've got confidential information. We're going to give it to you, but you've got to look after it. You've got to respect the fact that it's secret, confidential, only people who needs to know bases get to know about it," and there's all sorts of things like not copying it and protecting it, and if the discussions don't go anywhere, returning it all, destroying it all, and these obligations can last for a reasonable period of time.

So if you're dealing in any sort of business situation where you're negotiating or talking about a potential new development and you're sharing valuable information that belongs to you, you need a non-disclosure agreement or something like a confidentiality deed. Now, we can prepare these. We can also review them if you get them from another side. So remember, protect your valuable assets, your confidential information. Always have a non-disclosure agreement. I hope you find that useful. Remember, any questions, contact myself or anyone else at Millens. We're here to help.

Sometimes, as lawyers, we forget that things we take for granted, perhaps our clients don't quite understand. I had two examples this week. I had a client that we were trying to advise them about a potential breach of a contract, and they said, "Oh, well, we don't really have a contract with the other side because there's nothing in writing." And I said, "Well, you don't have to have... Some contracts, you must have in writing, like guarantees and things like that, but you don't necessarily have to have a written contract." The contract could be verbal or it could just, as in this case, arise out of three years of dealing with each other in a certain particular way. So a course of dealing can create a contract. So the client was pleased to know that in fact he really did have a contract and the other side breached it, and so he's got a claim for damages.

Another thing about contracts this week, I had a situation where we were negotiating a contract and my client said, "Well, we're going to accept their offer, but on different terms." And I said, "Well, that's not really a contract, because if you go back and say that you've got different terms, you're really making what we call a counteroffer. You're not accepting their offer and making a contract happen, you're coming back with a different type of offer." The client said, "No, I'm accepting their price and this, I just want different terms." I said, "That is not a contract. Until the parties actually agree on all the key elements, there's no contract." So they have to agree on the parties and all the key terms. You can't accept some and not others and still think you've got a contract.

So these concepts, we understand them, but perhaps sometimes you don't. So if you've got any queries about, have you got a contract, how do we create a contract, how do we make sure we've got something that's enforceable? Contact me or anyone else at Millens and we'll be able to help you. Thanks.

Ross Millen:

Hi. I had a client the other day that unfortunately got involved in some litigation despite his best efforts. And I said, "Look, what we'll do is, to give ourselves a bit of protection on legal costs down the track, let's put in a really reasonable without prejudice offer right up front." And he said, "Well, explain to me what that really means." So in litigation, we often play a good cop, bad cop. The bad cop is the litigation itself. "Do this by this state. We're going to file this, we're going to do that." So that's very strict. But then we have a good cop, which is making without prejudice offer, saying, "Look, no one wants to spend all this money on lawyers, and it's taking everyone, distracting them from their normal business. Why don't we just make an offer and everyone will be unhappy, but we'll go our own ways?" And often that's what we try to work on and get for our commercial clients.

But we need to be careful. If we make a ridiculous offer, that'll just... The other side won't accept it and it'll probably just annoy them. Also, therefore, we have to protect ourselves by making a reasonable offer. And we do this in a certain way. We use certain expressions, but we say, "Here's our reasonable offer. If you don't accept it and you do worse at the end of the day, hey, you've got to pay our costs from the day we made the reasonable offer." So by pitching a very reasonable offer and the other side rejects it, you can start to protect yourself on legal costs. So it's quite complicated and the cost can be expensive. So we try to make sure that we explain every step, you understand the whole strategy and the tactics behind everything we do. Good cop, bad cop, making offers, trying to get the best commercial result for our clients.

So if you've got any further questions or you know anyone who's interested in understanding more about this topic, don't hesitate to contact us at Millens Lawyers. Thank you.

Hi. I wanted to talk to you today about challenging a Will. It sounds very like a Dickens novel or something that you might read about in the paper, or perhaps it'll be the next thing to replace Succession on a television series, but actually it's a very important thing. And why does this happen? Well, the law recognizes that sometimes you have a responsibility to provide for certain people in your Will. So if you've got children who you're looking after, perhaps even with disabilities, you can't leave all your money to the cat home, unfortunately. So, Millens has a lot of experience in this area, not me personally, but Angela Costin in our office has a lot of experience in dealing with claims. And so therefore, if you feel that you haven't been properly provided for in someone's Will, please contact us, contact me, or contact Angela in my office, and she can advise you about your rights and what you can do about it.

But a second part of this is people come to us and they want to have their estate planning carried out. They might be concerned that a child that they are estranged from is going to bring a claim later when they die. So we've also got very good strategies for putting things in place to prevent claims being made. So from both sides, we can help you make a claim and we can help you prevent or reduce the risk of claims being made. So remember, if you've got any questions about Wills, challenging Wills, or preventing your Will being challenged as part of your estate planning, contact me, Ross Millen at Millens. We're here to help. Thank you.