Christmas is a wonderful time of year but let’s face it, it can also be the most stressful time.  Not only do you have to spend a whole heap of money on food and presents, find time to do all the Christmas parties and activities but you then have to spend Christmas day with relatives who you may or may not particularly like.  Perhaps you are considering separating from your spouse but have decided to get through Christmas and New Year first. So how do you survive?

1. Take a step back! You are only human so don’t try to be a super hero! You can only do what you can.
2. Work off a budget. Don’t be tempted to splurge on things you can’t afford, especially if money is tight or you are considering a separation from your spouse.
3. If you are already separated, make sure you and your former partner have a plan in place about when you will each spend time with the children over the Christmas period. If you are already in conflict regarding this, please contact us urgently so that formal arrangements can be put in place before the Christmas period begins.
4. If you (like so many) have a difficult relative/s, try not to let their comments stress or upset you. Remember that the day is as much about your little family as it is everyone else’s. Focus on making the day special for yourselves and your little family and block out any negativity from others.
5. Do your best to avoid conflict and make sure it does not happen in front of your children. Remember their best interests must always come first.
6. Don’t go over old wounds – if you have previously had issues with your family or your spouse’s family, long term resentment can spill over when your spending extended time together. It is rarely a good idea to raise these issues in the middle of your Christmas celebrations.
7. Don’t drink too much alcohol.
8. If you or your children are not safe, call the police immediately or if you are considering self-harm, please contact Beyond Blue – 1300 224 636 as they are available 24/7 over the holiday period by phone, email or online chat.

We hope you have a wonderful Christmas and New Year. However, if you need assistance with your separation or are contemplating separating from your spouse over this time, our experienced family lawyers will be contactable over the Christmas period – 38708244 (Toowong) or 3264 7692 (Albany Creek).

It is becoming increasingly more common for relatives and friends to purchase real property together in order to gain entry into the property market because they would otherwise not have the financial resources to purchase the property on their own.

However, disputes can arise when one party wants to sell their share of the property but the other owners do not wish to sell or one party cannot “buy out” the other parties.

Under section 38 of the Property Law Act 1974 (Qld) (the Act), a co-owner may make an application to court, seeking the appointment of a statutory trustee to sell a property regardless of whether the other co-owners agree or not. This can occur when family members or friends buy real property together and then fall into dispute (please note this does not cover matrimonial property settlements which are dealt with under the Family Law Act).

If the co-owners cannot reach agreement on what to do with the property, or one co-owner cannot raise enough funds to buy out the other co-owner’s share, then you can compel the sale of the property under the Act.

The process is relatively straightforward and requires an application to the court supported by affidavit evidence and the consent of a statutory trustee. Usually statutory trustees will be solicitors or accountants who will act to sell the property.

Once appointed, the statutory trustees can sell the property either by auction or private treaty.  The statutory trustee will undertake research to determine the market value of the property and decide on the best method of sale to be utilised to gain the best price for the property at the time. A real estate agent may also be appointed to sell the property.

Once sold, any parties owed funds will be paid from the proceeds of sale (i.e. mortgagees, solicitor’s fees and real estate agent’s commission).  Any funds left over will then be divided between the co-owners in proportion of their ownership.

What happens if one co-owner is residing in the property and won’t leave?

Often in the cases of co-ownership, one owner resides at the property in question and is the party refusing to sell, given the disruption it would cause for them to vacate the property.

In the event that this party disputes the sale and refuses to vacate the property, the statutory trustee, once appointed, will obtain an order for possession of the property from the court. The statutory trustee will then serve this order on the owner residing at the property, giving them a timeframe in which the property is to be sold.

If this party still refuses to leave the property, the statutory trustee will then obtain a warrant for possession and a bailiff will remove the person from the property (and will then be left to clear their belongings before the property is placed on the market).

Can the appointment of the statutory trustee be disputed?

A section 38 application for the appointment for a statutory trustee is very difficult to oppose and usually the court will grant the appointment of the statutory trustee, which will then allow the sale of the property.

However the following grounds provide bases for opposing the appointment of a statutory trustee:

• One of the co-owners holds the property in their capacity as a trustee as evidenced by a written trust document dealing proving the entitlement to the property.  For example, a person may remarry and hold the property on trust for their children.
• If there is an agreement in place between the co-owners that deals with how the property is to be sold in the future.  For example, there may be an agreement giving a co-owner a first right of refusal, or requiring a certain period of time, i.e. 12 months to pass before the property can be sold (in order to allow time to raise sufficient finance to buy out the other party’s share).
• The argument that one co-owner has exhausted their share in the property and no longer has any right to claim to have an interest in the property.  For example, is a co-owner takes out a mortgage against the property for their own benefit and then does not repay that money.
• The equity of exoneration –  for example, a first co-owner takes out a second mortgage against the property to start a new business; the other co-owners have no interest in or benefit from the business.  The business then fails, and the first co-owner is declared a bankrupt. That co-owner’s bankruptcy trustee may seek to sell the house to pay the debt.  The remaining owners may be able to argue that only the first co-owner should bear the burden of the debt, and they should be exonerated from it.

In any case there can be no guarantee that the appointment of the statutory trustee (and subsequent sale of the property) will not go ahead. Much depends on the factual background and evidence to be presented, however these applications are almost impossible to defend.

If you are considering buying real property with others, you should give consideration to what is to happen should the relationship sour or one co-owner wants to sell. A properly drafted agreement recording the co-owners’ rights and obligations could potentially save a lot of long term difficulties.

If you require advice in respect of forcing the sale of your co-owned property, or defending a s38 Application for the appointment of a statutory trustee that has been served upon you, please contact us.

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Work Licence Applications

If you are charged with drink or drug driving offences, you may be eligible for a Work Licence which will allow you to drive for the purposes of your employment.

In order to be eligible for a Work Licence you must prove to the Court that if you are not granted a Work Licence you will lose your job, which will cause you extreme hardship and that you are a fit and proper person to hold a Work Licence.

Are you eligible for a Work Licence?

To be eligible to apply for a Work Licence in Queensland all of the following circumstances must apply:

• At the time of applying for a Work Licence you hold a current Queensland provisional or open driver licence;

• At the time of the offence you held a current Queensland provisional or open driver licence;

• You were not driving in the course of your employment at the time of the offence;

• You have not, in the last five years, been convicted anywhere of a drink driving offence or similar offence, or failing to provide a specimen of breath or blood;

• You have not, in the last five years, been disqualified from holding a licence, had your licence disqualified, suspended or cancelled in Queensland (not including disqualification for mental or physical handicap, or suspension for non-payment of fines and penalties, or offences later set aside on appeal);

• You have not been convicted of dangerous driving in Queensland in the last five years;

• Your blood alcohol concentration level was below 0.15%; and

• You were not driving under a licence that required your blood alcohol concentration to be zero at the time of the offence.

In order to be eligible for a Work Licence you must prove to the Court:

• That if you are not granted a Work Licence you will lose your job, which will cause extreme hardship for yourself and your family; and

• That you are a fit and proper person to hold a Work Licence.

Are you excluded from holding a Work Licence?

You cannot apply for a Work Licence if at the time of the offence:

• You were driving a motor vehicle that you were not authorised to drive under an open or provisional licence;

• You were under 25, on a provisional licence or learners permit and your blood alcohol concentration level exceeded 0% or you had illegal drugs in your system;

• you are unemployed;

• Being without licence will cause you inconvenience only;

• You were under the influence of drugs.

Will your Work Licence be restricted?

The Court may grant you a Work Licence but impose restrictions on you, such as the times when you may drive, the purposes for which you may drive, the class of vehicle you may drive and the carrying of passengers in the vehicle.

Disqualification Period

Ordinarily, Work Licences are issued for the entire period of your disqualification. If you apply for and are granted a Work Licence the Court may elect to double the disqualification period you would have received had you not received the Work Licence.

When should you apply for a Work Licence?

Applications for Work Licences must be made to the Court that will hear your drink or drug driving charge and must be made before you have been found guilty of the offence.

When will your application be heard?

At the first court appearance you should advise the Magistrate that you wish to apply for a Work Licence. The Magistrate will then set a time and date for your application to be heard.

It is possible that you or your employer may be called to give evidence in the witness box before the Magistrate regarding any of the matters disclosed in your affidavits.

Do you need a lawyer?

Whilst you can complete the documentation, submit it yourself and also appear in court on your own behalf – and whilst appearing biased – we recommend that you engage a solicitor to assist you.

Remember that you are only able to apply for a work licence once on the day of your hearing. Improperly prepared affidavits, incorrect forms, or poor representation on the day may lead to extended disqualification periods, larger fines, insufficient or improper work licence terms, or the rejection of your work licence application.

Allowing a solicitor experienced in work licence applications to guide you through the process affords peace of mind and may make the difference that allows you to keep working through your disqualification period.

Lockett McCullough Lawyers can assist you with your Work Licence application by appearing for you in Court and also by preparing all of the documentation required for your application. This includes:

• An affidavit from yourself addressing your work, financial, driving and personal circumstances – unless already included in the QP9 (police report), you should also exhibit your traffic and criminal history;
• An affidavit from your employer addressing the necessity of a Work Licence to your job and the consequences of you not obtaining a Work Licence;
• An Application for an Order directing the issue of a Restricted Licence.

Alternatively, if you wish to prepare the documents yourself, we are happy to peruse your documents and make recommendations in order to reduce your costs.

Please contact us today if you require any further information or assistance with your Work Licence Application.