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BREED Put on a Warm Welcome for Local Business Networking Event.

BREED Business Centre

The BREED Business Centre once again out did itself with its hospitality and generosity. Stepping in at short notice to host the July Business After 5 for the Greater Blacktown Business Chamber on a cold July night they provided a warm and inviting atmosphere.

The evening was well attended. New business relationships were formed and current relationships strengthened.

BREED General Manager Stephen Frost spoke knowledgeably on youth education and employment.

Thank you to all the BREED staff who put in a supreme effort in organising the evening.

BREED Board Members Nathan Burbridge and Steven Brown attended to witness a vibrant evening of networking and thank the BREED staff for all their efforts.

5 Elements of Promissory Estoppel in Contract Law and Legal Agreements

Don’t Make Promises in Business You Can’t Keep

The court may decide you must uphold your promises even though you don’t believe you have entered into a contract or legal agreement. Promissory Estoppel is one of the elements of contract law that must be considered when drafting or entering into a contract or agreement.

Promissory Estoppel

Broken egg shells - broken promises. You can't break a promise in a legal agreement

A promise must normally be in a deed (legal agreement or contract) or supported by consideration to be enforced.  The principle of estoppel however may allow a promise to be enforced even though these requirements are not satisfied.

The development of the concept of “promissory estoppel” in contract law has led to the proposition that a court may decide that a “contract” has come into being even though the traditional rules for contract formation have not been satisfied.

The 5 elements of Promissory Estoppel are:

1.     Some form of legal relationship either exists or is anticipated between the parties.

A contractual relationship is the most common type of “legal” relationship. Parties to pre-contractual negotiations also fall within this principle.

2.     A representation or promise by one party.

Traditionally, estoppel could only be used with respect to a representation about an existing fact.  The High Court decision in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, however, extended the doctrine to representations about future conduct.  This type of “promissory estoppel” arises where the promise is given in circumstances that lead the other party to assume the promise will be performed.

3.     Reliance by the other party on the promise or representation.

The party relying on the promise must suffer a detriment

4.     Detriment

The party relying on the promise must have suffered some sort of detriment.  In other words, the party must be in a worse position for having relied on the promise.

5.     Unconscionability

There is no general restriction, which prohibits a person from breaking his or her promise.  Accordingly, before an action for estoppel will succeed, it must be shown that, in the circumstances, it would be unfair or inequitable to allow them to do so.

Remedies

Quote from Olex Focas Pty Ltd v Skodaexpert Co Ltd 1997The remedies available to someone who has relied on a promise to their detriment are equitable.  This means that the court has a discretion in deciding what to do and it will do what it can to relieve the detriment suffered.  The courts will not necessarily force the party to honor its promise, unless this is the only way to do justice.

When and How to Use Estoppel

A party seeking to raise estoppel must make out a clear case and show that it would be unconscionable for the promisor to go back on their promise.  Unconscionability is really the backbone of estoppel.

It is important to realise that failing to fulfil a promise does not of itself amount to unconscionable conduct, nor does mere reliance on a promise to a person’s detriment.  Something more is really needed such as encouragement by the party that the promise will actually be performed.

The principles outlined above should always be the starting point if estoppel is to be used.  The nature of estoppel, however, is such that it cannot be defined into simple elements.  At best, the principles are a guide as to what the court will look for.

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Top 5 Franchising Tips

Starting any new business takes hard work. This applies equally when starting a franchise business. To successfully market a franchise system, it is necessary for the franchisor to gain the trust of prospective franchisees. To gain that trust, it is essential that the franchisor is completely prepared 5 Top Tips for Franchisingbefore going to market with the business to potential franchisees. What preparations should be done by the franchisor to be seen as a quality franchisor?

  1. Create a business concept that can attract interest from prospective franchisees. This can be done by having a very developed vision that is described fully in a disclosure document. Look for a concept that is filling an existing gap in the market and one that can be monetised easily. The business concept is the foundation stone upon which a franchise can be built.
  2. Form a team that can help in building this business. Surround yourself with sound professionals who have expertise in business strategy, legal skills and knowledge of the industry and market the franchise system operates in. This is also the team that will establish the format of the support that can be provided to the franchisee. The quality of this team is a selling point in itself; a great team means a potential franchisee is also purchasing a stake in this team, thus increasing the value of the franchise.
  3. According to the science of marketing, look for the uniqueness of the goods or services, because this uniqueness determines whether our goods or services would be accepted by the market. Find your point of difference or your unique selling proposition (USP). The one special thing which sets you apart and allows you to compete levelly with similar businesses and be competitive.
  4. Consult the experts – you may be the best accountant, or sales person, but when you franchise your business, you need those professionals supporting you with the best possible experience. It is crucial you use people such as Etienne Lawyers who are experienced in the field of franchise to ensure the success of your franchise venture.
  5. Finally, follow through. Follow your strategy plan; prepare you marketing and promotion focusing on your USP and your successful systems.

If you would like to find out how to successfully franchise your business call us on 02 8845 2400 or contact me at sujono@etiennelaw.com

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What Happens to your Facebook When You Die?

What Happens to your Facebook when you die

When one dies, property is dealt with under the terms of a Will or in default of a will by Letters of Administration (“Letters”) from the relevant Supreme Court of a State. Once the Court has granted Probate or Letters, the deceased’s Executor can deal with items of property, and in the event that all property is jointly owned (typically by a deceased and their spouse), the Executor will only need a certified Notice of Death to have the property dealt with.

In the context of a death, there remains the question of what happens with a deceased’s Facebook page.  A Facebook page with all its photo’s, communications and memories will remain.

Facebook has its own guidelines on what happens in the event of a person’s death, and these largely reflect the state of the law for personal property.  A Facebook page may be removed and all the data deleted at the request of a deceased’s Executor, and this requires production of the Certificate of Death and/or Grant of Probate. There is however, no Australian legislation that specifically addresses the question of such “digital assets” as Facebook.

Apart from wishing to remove a Facebook page in its entirety, an Executor may also wish to preserve the page but to close off any access to it.  The guidelines also deal with this, providing that where access is being sought to such pages, such access is strictly limited and often refused. Also a deceased’s person’s page may be “memorialised” where it cannot be logged into or changed in any way but where the page will remain and can be viewed.

There remains the question of whether Facebook’s guidelines and practices are sufficient in themselves or whether there is a need for statutory regulation.

In the USA a number of the states have or are considering introducing, legislation that will specifically deal with digital assets. In Virginia for instance an executor may obtain control over all Digital accounts, emails, social media, blogs and online text message services.

As Facebook’s guidelines currently stand there seem s no particular need for legislation in Australia. This does however beg the question of what other or similar digital assets currently exist or may come into existence in the near future.

Given that an Executor is meant to and should be, able to take control over all assets of a deceased, it would be desirable that they be specifically empowered to take over or to remove any such digital assets. This might be comprehensively dealt with by copying the legislation of Virginia or possibly and more easily with a short amendment to the State Succession legislation, that would specifically include all digital assets as property of an estate and therefore within the control of the Executor.

If you have any questions regarding wills, estate planning or probate please email jlucas@etiennelaw.com or phone 1300 882 032 for help.

David and Irena Brooks – Represent Australia in Canada

Congratulations to David and Irena Brooks on winning the Jupiters National Danceport Championship in Standard and New Vogue.

They will represent Australia at the World Dancesport Senior II Standard Championships in Vancouver Canada this November.

We are very proud of all their hard work and celebrate their wonderful success with them.

Why Planning and Consideration are Important When Writing a Will

Why Planning for your will is important

The Supreme Court of Western Australia recently handed down its decision in the case Ioppolo & Hesford v Conti. The case illustrates the importance for will makers to take proper legal advice when dealing with their estate and assets that they have an interest in but which they do not legally control. An example of such a situation would be attempting to bequeath entitlements in a self-managed superannuation fund (SMSF) pursuant to a will.

Background

Mrs Conti and her husband established a SMSF in 2002. Mrs Conti and her husband were the only members of the fund and Mrs Conti made a Will on 13 January 2005. Mrs Conti attempted to give her entitlements of her membership of the SMSF to her children. She specifically stated in her Will that she did not want any entitlements to be paid to her husband. By the time of her death on 5 August 2011, Mrs Conti had not made a binding written direction to the trustee of the SMSF, directing where to pay her SMSF entitlements. The sole remaining trustee of the SMSF was her husband. 

Following the death of Mrs Conti, the husband remained the sole trustee of the SMSF. Mr Conti exercised his powers under the terms of the SMSF and a new trustee company was appointed the sole trustee of the SMSF. Mr Conti was the sole shareholder and director of the new trustee company (Augusto Investments Pty Ltd). Augusto Investments Pty Ltd then resolved to pay the whole of Mrs Conti’s death benefit to Mr Conti in accordance with the rules of the SMSF. 

The executors of Mrs Conti’s estate filed proceedings with the Court seeking relief on 4 main points that:

  • Mr Conti was obliged to appoint one of the executors of Mrs Conti’s estate as a trustee of the SMSF;
  • Mr Conti – as sole remaining trustee of the SMSF – did not exercise his discretion in a bone fide manner as required by the SMSF deed
  • The Executor be appointed as a trustee of the SMSF; and
  • The Court should review the discretion exercised by Mr Conti in his capacity as sole remaining trustee of the SMSF.

The Court held that the sole surviving trustee of the SMSF was entitled to ignore the direction contained in the Will. The Trustees not being in anyway bound by the direction in a member’s Will.  The Executors claims were dismissed.

Conclusion

The case illustrates the importance for will makers to consider all aspects of their estate planning when preparing their Will. In particular what assets they have the power to deal with in their Will and to consider what legal steps they need to take to deal with other interests such as those in SMSF’s, trusts, assets within a company, or superannuation funds controlled by retail managers. Will makers should consider seeking professional legal advice.

When writing your will you need to know which assets can be dealt with inside the will. It is a complex area and needs professional advice. By not dealing with the assets correctly in the will your wishes will not be fulfilled. Call Etienne Lawyers today on 1300 882 032 for an expert opinion on your will. www.etiennelaw.com

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Etienne Lawyers in association with Davis and King

Etienne Lawyers is now associated with Davis and King.

The firm of Davis and King is now back. Ted Davis and Roddon King are now working together with Etienne Lawyers.

‘You can still pick Ted’s brain’

Please Pick Out Brains

Etienne Lawyers (in association with Davis & King) are delighted to welcome Ted Davis and Rodon King and genuinely want you to ‘pick their brains’.

Ted is bringing his exceptional experience in Negotiation and Litigation to the Etienne Lawyers Office.

His knowledge of mining, media, property development, transport and HR are unsurpassed and you are the winners.

Rodon King, Ted’s original partner brings a wealth of experience in trade practices, airline law, transport and high quality commercial work.

Etienne Lawyers are a dynamic team who are proactive and welcome Ted and Rodon’s expertise and enthusiasm.

Why not renew the acquaintance and contact Ted or Rodon now on 1300 882 032.