FAQ

Hollingworth & Spencer Lawyers, The Gap & Samford, Brisbane

General

Yes, we have one available at both our Gap and Samford offices. We do recommend that you call first to make a convenient time and to ensure that someone will be available.

No, documents are held free of charge on your behalf for as long as required. Feel free to contact this office at any time to confirm the documents we hold on your behalf. Should you need to collect your documents, we will require photo identification to release them.

Commercial

Due diligence is the process of making enquiries and searches to ensure that the Business you are buying is in good financial health or the property you are purchasing is actually as good a deal as it seems and that you will receive what you bargained for. The due diligence process for a business purchase will also inform you about the prospects and the competitors of the Business.

Examples of due diligence enquiries for a business are:

  • review of the existing lease;
  • inspection of the Business’ financial statements and tax records, to ascertain the profitability, debts and losses of the business;
  • searches as to whether Council has any outstanding requisitions concerning the Business or the business premises;
  • enquiries as to whether the Business is subject to a mortgage or any other encumbrance;
  • a search as to whether the Seller is insolvent;
  • inspection of the plant and equipment of the Business.

Examples of due diligence enquiries for property are:

  • rates and building record searches;
  • town planning search
  • Inspecting the physical records of any body corporate
  • Surveying the property to check for encroachments
  • Search of charges over the property sold
  • Background checks of the sellers to ensure they are not bankrupt of under administration.
A restraint of trade provision in a Business purchase Contract would restrict the Seller from operating a competing business within a certain radius from the Business for a certain period of time. Such a clause would only be enforceable against the Seller if it is reasonable in terms of the radius, the period of time and the type of business activity. By “enforceable” we mean that if the Seller does not comply with the clause, the Buyer can compel them to do so by instituting court proceedings against them.

If the court finds a restraint of trade provision excessive, it will strike it out of the Contract. The remainder of the Contract would not be affected.
You are welcome to contact us for advice on the structure of an enforceable restraint of trade provision.

Conveyancing

Conveyancing is the process of giving effect to an agreement to buy or sell property. It can be as simple as preparing or signing a transfer or complex enough to take up working weeks. Each transaction is unique.
There are more complex and comprehensive searches performed when you are purchasing a property. This is because a Buyer has often seen a property or business that looks attractive but needs to be satisfied that they are getting what they are paying for. Hence both the professional fee and search fees are higher.
Transfer duty (commonly referred to as stamp duty) is a tax imposed by the Government on the purchase of property. Under the standard contract of sale, transfer duty is payable by the buyer. It is determined by the purchase price of the property together with any concession to which you may be entitled.

PEXA stands for Property Exchange Australia.  PEXA streamlines the processing of buying and selling property by electronically lodging documents, transactions and settlements in an efficient and secure manner.

Wills and Estates

When someone dies with a Will, sometimes a Grant of Probate is required to deal with the assets of the estate. A Grant of Probate is simply the Supreme Court’s approval that the Last Will and Testament of the deceased is valid and that the person or persons appointed as Executor/s are the proper person or persons to administer the Estate.
If you die without having made a Will, or you made a Will which is in whole or part invalid, any assets you didn’t include in a valid will are distributed in accordance with a legislated rigid formula. Those laws may have the effect of:
  •   forcing the sale of the family home or car so that beneficiaries can claim their share of the assets;
  •   leave incapacitated members of your family without adequate support;
  •   fail to provide financial protection for your spouse or partner, children or grandchildren
  •   make provision for a spouse from whom you are separated but legally divorced; or
  •   give your assets to the government should you have no relatives.
Intestacy means dying without a Will, or without a valid Will.
A Power of Attorney is a legal document authorising another person, appointed by you, to act on your behalf in the management of your financial affairs and/or your personal or health care. The person you appoint is called your “attorney”.
If you were to lose the ability to manage your own financial affairs or make decision about your personal or health care your affairs may end up being managed by a government department or institutional trustee for a fee. By appointing an attorney you can choose that a family member or trusted friend has the responsibility for managing your affairs. Having a Power of Attorney in place can give you peace of mind that your affairs are being handled by a person of your choosing if you:
  •  are ill;
  •  take an extended holiday;
  •  go overseas; or
  •  due to advanced age you reach a stage where you require greater assistance to manage your affairs.

Due to the impact of specific facts on any given case please treat this information as a general guide and not as legal advice. If you require advice on how to adequately protect your security rights please contact our office on 07 3123 5700.