November Newsletter 2018

DISCLAIMER The contents of this newsletter are of a general nature and cannot be relied upon as legal advice.  However, if you need legal advice please do not hesitate to contact any one of our lawyers. 

Peter Nevile Principal Lawyer

Peter’s Update

Last month I slept in Angeline Jolie’s bed! I will tell you more shortly….

Several weeks ago, I had the pleasure of meeting with some French lawyers in Paris at their beautiful offices on the Champs Elysee, to discuss some inheritance issues for one of our clients.

I also managed to have some very good meals while I was there. It seemed a shame not to! One place I strongly recommend is Le Marche des Enfants Rouge in Le Marais.  Reputedly the oldest covered market in Paris.  Named after the colour of the clothing worn by the children of the orphanage. An open-air market with stools at high tables and some cover.  A variety of food stalls each with a different style of food.

Following a short stay in San Sebastian to see one of my sons who lives in Madrid, and even shorter stays in Porto and Lisbon, I flew to Marrakech in Morocco where I stayed in the Medina at the beautiful Riad Farnatchi.  It was there that I slept in her bed.  Regrettably for me and fortunately for her…or so my wife said… she was not there!

Anyway, the point of my story was that I ended up “Glamping” at a desert camp Erg Chigaga set up by a Berber tribesman with the very non Berber name of Bobo and his English friend Nick Garsten. A not to be missed experience. There among other things, the open bar was a distraction at times, I went camel trekking and quad bike riding in the desert.

In my younger days I had several farms, one of which was quite hilly, and I was very aware of the risks on my tractor. Quad bike riding up and down very steep dunes was probably more dangerous, although, it was a lot of fun. It occurred to me that as lawyers, we are effectively Risk Managers. There are risks in life, including marriage, children, and death and certainly, risks in business.  They cannot be avoided.  However, our role as lawyers is to work with you to identify them, so together we can manage and minimize them.

We are happy to discuss a risk assessment with you at any time.

Peter Nevile


New Staff

Since our last newsletter, we are happy to welcome a number of new staff to our firm.
  • Katie Hinds is a property lawyer originally from Scotland. She does not need a translator.
  • Traci Chen from Guangzhou is a migration lawyer who speaks both Cantonese and Mandarin and passable English
  • Liuqian Liu is an Intern. She is qualified as a Chinese lawyer and now undertaking a JD to become an Australian lawyer.
  • Minh Chau who is presently studying law at Monash University will join us as an intern at the beginning of next year. She speaks Vietnamese and French
  • Gaia Piesse is an intern who is finishing an undergraduate degree in an unrelated discipline and intends to commence her JD next year. She speaks Thai.
  • Jack Nevile has also re-joined us as an intern after a year abroad studying German and Spanish.  He is fluent in German and reasonably proficient in Spanish.

 


Migration
 

We are pleased to welcome Yan Yan Chen (Traci), who has joined us as a migration lawyer. Traci speaks both Mandarin and Cantonese and is a Registered Migration Agent in addition.
Traci was born in Guanzhou, and her profile is attached. She spends a significant amount of time in China and you may contact her as follows:

Email: traci.chen@nevile.com.au
Phone: +61 3 9664 4708
WeChat:  18588772947

Business Migration

I have set out the 7 different classes of prospective migration, with a very short summary on each one. If you send us an email, or WeChat we can forward you information sheets about each or all of the above classes of migration.  We find that the 188 Business Innovation and Investment Visa class and the 188 Significant Investor Visa class are the most popular.

o   Business Innovation stream
o   Business Innovation Extension Stream
o   Investor stream
o   Significant Investor stream
o   Significant Investor Extension Stream
o   Premium Investor Stream
o   Entrepreneur Stream

While the Significant Investor Visa class does require an investment of AUD$5 million, while it has a distinct advantage of no age limitation, no language requirements and simply a minimum of 40 days a year or accumulate a total of 160 days in four years. The Business Innovation and Investment Visa is simpler with a requirement of assets of a minimum of AUD$800,000 and a business turnover of a minimum of AUD$500,000 in any two of the last four years. However, there are language and age qualifications. It also requires you to set up a business in Australia.

If you have any questions, or you would like us to send a questionnaire, then when you have completed it and returned it to our office, we are happy to make an initial assessment, based on the information you provide without charge.

Interested in EU Passport or citizenship?

We can refer you to a program which will provide you with a citizenship on the basis of investment. For further details, please contact our migration lawyer, Traci Chen –
Email:                        traci.chen@nevile.com.au
WeChat:                    18588772947
WhatsApp:                +61 3 9664 4708

 


Serving a Statutory Demand: Guidelines For Creditors

Source: Lord Commercial Lawyers
A statutory demand is a useful way to pressure a company to pay its debts. However, a creditor using a statutory demand to quickly recover a debt can run into trouble if the legal requirements for service of the statutory demand are not complied with.

In this article, we set out how to properly serve a statutory demand and avoid some common problems which can arise.

What is a Statutory Demand?

A statutory demand is a quick and inexpensive way of recovering undisputed money owed by corporate debtors.
A creditor can make a statutory demand for payment of a debt as long as there is a debt which is due and payable.
Companies served with a statutory demand have 21 days to either pay the money owed, or to make an application to set aside the statutory demand. If a debtor company fails to comply with a statutory demand or have the demand set aside, a presumption is made that the debtor company is insolvent, and an application can be made to have the debtor company wound up.

Serving a Statutory DemandThe Corporations Act 2001 (Cth) sets out the procedure that must be followed when serving a statutory demand. The procedure can be complicated.

If a statutory demand is not properly served a Court may find that the service was invalid, and set aside the statutory demand.
Under the Corporations Act, all companies must register their office address with ASIC, and keep those registered details up to date. A creditor can serve a statutory demand by leaving it at the registered office of the debtor company, sending it by post to that office or delivering a copy of the demand personally to a directory of the company who resides in Australia.

You cannot serve a statutory demand on a foreign company, as separate procedures are in place to wind up foreign companies.
Under the Commonwealth Evidence Act, a postal article sent by prepaid post to a person at a specified address in Australia is presumed to have been received 4 business days after postage. That timeframe can be accelerated by serving a statutory demand by express post, where the date of delivery can be tracked and proven by Australia Post’s tracking system.

Avoiding Pitfalls

Debtor companies often argue that they did not receive the statutory demand on the day it was served, or that they never received the demand in the first place. These issues can be avoided by:

• undertaking a company search in relation to the debtor company and ensuring that the address on the envelope serving the statutory demand is identical to the address appearing on the ASIC record;
• hand delivering the demand to the registered office; and/or
• keeping contemporaneous records of the details of service (something which is made easier if registered post is used).

Where a creditor becomes aware that the company no longer occupies the registered address and the creditor is aware of the new address, then he or she should bring the demand to the notice of the company at that new address.

If the creditor is aware that the company no longer occupies the registered address but does not know where the company has moved, then it is prudent to serve the statutory demand on the company’s director.

Conclusion

There is a strict procedure with respect to the service of a statutory demand.

A failure to properly issue a demand can be expensive. The statutory demand may not be enforceable if it is not served in accordance with the relevant procedure.

Debtor companies regularly claim that they did not receive the statutory demand on the day it was served. As such, it is advisable that a statutory demand be served on a company by being personally delivered to the registered offices of the company.

If you or someone you know wants more information or needs help or advice, please contact us on (03) 9664 4700 or email david.dudderidge@nevile.com.au.


Incorporating a Company 

Setting up a Company in Australia is easy for non-residents.

  1. You can be both a Director and a Shareholder of the Australian company.
  2. The company can conduct almost any business except be involved in second hand residential real estate. We can advise on the few restricted areas.
  3. You can purchase the whole or part of:
  • a business or set up a new one
  • greenfield land for development
  • commercial buildings, industrial or tourism real estate
  • a farm or a winery, horticulture, aquaculture and a whole range of businesses including start-ups and hi-tech companies.

4.  If you have a specific business venture, need or structure you would like to discuss, please let us know.
5.  Our related Corporate Advisory company, Cavendish Corporate Advisory (CCA), can assist you to locate, source and negotiate for the whole range of possible mergers & acquisitions.

6.  You need to do the following to set up a company:

  • Choose a company name
  • Nominate Directors and Shareholders. The company must have at least one Director that lives in Australia.
  • Decide if you want a standard company Constitution or you have special requirements for governing the company.
  • Decide how much initial capital you wish to contribute and how many shares you want in exchange. You can issue different classes of shares with different entitlements.
  • Appoint a Secretary or Public Officer.
  • Select a Registered Office. This can be your Lawyer or Accountant’s office.
  • Select an Accountant. We can refer several Chinese speaking Accounts with Australian CPA qualifications for your consideration. The company needs to lodge annual tax returns and they can help you with that.
  • Set up an Australian bank account with appropriate signatures and internet access.  We can assist you with this.

7.  If there are a number of Shareholders, we recommend you have a Shareholders Agreement, which is a specialised document tailored to the particular purpose of the company, the nature of your business and, more importantly, the wishes of each Shareholder.

We can email an instruction form to you or your clients to complete, which contains sufficient information for us to set up a new company.

Our legal costs

The legal cost for a standard company with all necessary documentation including the Certificate of Incorporation is AUD $2,500 plus 10% GST (Goods and Service Tax).
The cost for providing an Australian registered office (if required) is negotiable but generally around $400 plus GST per year.
The cost of a Shareholders Agreement depends on its complexity and how many rounds of amendment it requires to finalise.
If you have any questions, please do not hesitate to contact us by the methods below:

In Australia:
meng.cheong@nevile.com.au

We are able to provide you with a range of businesses to purchase at any given time. We always recommend the appointment of an independent accountant, and we can refer you to several to carry out the financial due diligence on any business prior to purchase. We are also able to set up a company at any stage for you in Australia. You do not need to have any form of Visa, however, one of the Directors of the Company, must be ordinarily resident in Australia. That is, a citizen or a Permanent Resident. Any adult foreigner can also be a Director and Shareholder.

 


Farms and Wineries

GrapesWe have a number of significant farm properties available at any given time. We do however stress, that they need to be of a sufficient size to employ preferably existing management.

We have already acted in the purchase of a number of farms and sourced a number of wineries for our clients.

We are happy to announce that a winery sourced end negotiated for a Chinese client several years ago, was selected this year as the winery of the Year in Australia by James Halliday, who is probably the most famous wine writer in Australia. That winery was Seville Estate. We have enclosed a recent news article.  

Finally, we have provided you with a link to provide some examples of a number farming properties, ranging from the very large to the very small. If you have interest, please contact our office by completing the registration login on the website and entering your details.

 


Blockchain

Many of you will have heard about Blockchain, but most of you will have heard about Crypto Currency and probably Bitcoin.  There are many hundreds of coins or types of Cryptocurrency and we have seen great volatility with paper fortunes being made and lost.

Blockchain is the underlying software program from which cryptocurrency is an application. However, we are seeing the rapid development of many useful applications. For example, the Australia Stock Exchange (ASX) is moving to a Blockchain based operation.

Meng Cheong who is one of our lawyers also has a Computer Science degree.  I have attached a link to his article which provides an initial glimpse at explaining what Blockchain is and what it does. Blockchain will have an increasing influence on the way we do business with smart contracts from Ethereum being just one example.

 


Beware of Scams 

Payments to and from our Trust Account

We want to draw your attention to emails supposedly from our office requesting payment to a particular account. The only account to be used is the Nevile & Co. Law Practice Trust – SBS 183 334, Account no. 3018 74764, Swift Code MACQAU2S.

For your protection, we will not transfer any monies following an email from you directing where payment should be made until we have spoken with you on the telephone, WhatsApp or WeChat.

 


Banks and Finance

Following the revelations of the Royal Commission, it is no secret that our banks and other financial institutions have not actually come up smelling of roses. Makes you wonder why we the public guaranteed them via our government during the financial crisis, and allowed them to continue to treat us with such arrogance. Perhaps the Four Pillars has become too cosy a monopoly.

One of the results has been a very strong tightening of lending which is having a significant effect on the ability of prospective purchasers to borrow money.

There has been much hysteria in the press about a property market crash.  While I do not hold myself out as an expert in the field, it seems to me that we are seeing a much-needed correction.  However, it is most unlikely to lead to a major crash unless there are other significant external factors.  We still have a very strong migration to Melbourne.  We are not building enough accommodation to meet the present need. It appears that there will be a time of adjustment while the present numbers of apartments under construction are sold and occupied.

It is also worth noting that the number of apartments approved for construction is far greater than those which will actually be constructed.

Finally, it does not really matter when you get in to the property market it is when you get out.  If you take a short term view you are a speculator.  A long term view you are an investor.  As one of my work colleagues says “the best time to buy property was 10 years ago.  The second best time is now!”
For further information, please contact us.