Services
Contracts
* Preparation and Guidance
* Private or Industrial
*Negotiation and Representation
While many people would comfortably attempt to explain what a contract is, in fact contracts can be many things, many types, and open to interpretation.
What is a contract?
How do I know what a contract really is saying, asking, and requiring of me?
How do I protect myself as a builder, given most of my works require a contract?
How can I enforce my contract conditions?
How can I tell if I have signed a valid, or fair, contact?
It is easy to see that contracts are far from simple, and can be worrying trying to interpret the situation if relationships sour during the contract works.
A contract has many, and sometimes unforeseen, wrappings.
Possibly the most general consideration of what a contract is will be about the environment it is working in, such as construction, work place, purchasing, etc. Regardless of the space the contract is, or might be, operating in, it is important to ensure it is a valid contract. The range of contract types in the validity space varies depending on who you ask, but certainly has scope somewhere between being a legally valid contract through to an illegal, or void, contract, with some mid-ground twists on those two extremes.
Contracts are being used in more and more areas of everyday life. There are simple, everyday contracts like those for mobile phones and tenancy agreements, and at the other end of the spectrum are complicated contracts such as a home loans, and multi-billion dollar construction contracts. No matter the arena of a contract, the purpose is fundamentally the same; to state what is to be exchanged, and for what consideration. A few, or many, words will be needed depending on what is being contracted.
A contract is a statement of expectations and offerings. A contract can be verbal, written, as is often experienced today, and it can be valid and legally binding, void or voidable, or illegal or unenforceable. Given that every contract is written for different purposes by different people, the only fact without investigation is that a valid contract is legally enforceable.
It is probably dawning on the reader that there is no simple answer about any one contract. The context, content, and every action in and around a contract needs to be discovered and considered to know where the parties stand. Seeking assistance to either compile a purpose-driven contract or assess a contract you are being asked to sign can be the cost-efficient and prudent option rather than taking a meeting with a lawyer only after issues start brewing.
Building and construction has some unique Acts in play such as the Building and Construction Industry Security of Payment Act, 2009. Building and construction contracts tend to be lengthy, traverse multiple legislations, and whether your company is large or small, whether you are trying to be paid or rejecting payment claims, any disputes will see all parties referring to the contract. At that point, understanding your contract and any specific legislation being relied on is going to be essential.
While the information above is very brief it does spotlight both the simple and complicated nature of contracts. It also highlights the spread of contracts into everyday lives of all of us. The primary takeaway is that contracts are meant to state what is to be exchanged and for what consideration. The contract needs to be legally binding to be enforceable, and professional help early gives you a confident position to negotiate from.
In the event of a contract dispute, the earlier you get professional guidance the more likely you will be able to preserve your position, and conduct meaningful negotiations rather than being bullied along. At Inkblack Legal we target our contract assistance on two planes; simpler contracts, written clearly, encompassing all areas of the works to be done, and in dispute we target negotiations so that facts can be calmly considered rather than rushing to book a date in court.
Debt Recovery
* Debt Recovery Assessment
* Debt Recovery Process
* How To Enforce A Debt Judgement
As the list above suggests, debt recovery has many paths.Debt recovery is about ‘something’ being owed by someone to someone, most typically, but not exclusively, an amount of money. Further, a debt can arise from situations such as a works contract, in relation to loans and their repayment, monies held as securities, among other specific scenarios.
If you believe you are owed a debt and would like to recover it, you might consider the following initial questions;
- Is it a legally binding debt?
- Are there any legal papers referring to the agreement?
- In light of the above, what might be the most suitable next steps to recovering your debt?
The debt recovery process is dependent on what the debt is, the value of the debt, the nature of any supporting material such as contracts or other written arrangements, and other individual issues.The path to recourse is equally varied, ranging from an intervention letter through to taking the matter to court.
Where debt recovery judgements are ordered, you may be the debtee or the debtor. In either situation it may be that you need assistance either to enforce the judgment, or advice about disputing the judgement. A discussion with your lawyer is likely to be a prudent step in gathering relevant particulars which will assist you in making better decisions for your circumstances.
At Inkblack Legal we will assist you to visit all points of your matter, enabling us to put forward all of your options, particularly your strongest options.
Disputes
* Assessing The Position
* Knowing Your Rights
* Planning The Strategic Path
A dispute occurs when two parties cannot agree on a course of action. Countries may experience border disputes, neighbours sometimes dispute matters of fences or trees, and politicians often dispute the best course of action.
If you find yourself in a dispute, be it personal, commercial, or other type, it may be prudent to seek assistance from someone impartial who may be able to identify a path to resolution. By taking the time to understand your dispute a wider range of options might come to light.
- Neighbour Dispute
- Commercial Dispute
- Contractual Dispute
- Employer/Employee
- Regulatory Dispute
- Council Disputes
The list is not exhaustive, but does catch many common types of disputes causing people to take action these days. Depending on what the dispute is about, and often where, then focus can be directed to the appropriate laws, by-laws, or regulations.
Even in the brief content here it is easy to see how diverse the topic of disputes can be, and it only takes a brief consideration to realise how easy it can be to get consumed in a legal battle that you may not have been wanting at all. One of the most difficult elements of disputes occurs when it is quite personal in nature, such as a neighbour dispute over trees. These problems are so prolific that the Legal Services Commission of South Australia has produced a booklet on the topic aimed at providing practical and realistic commentary about the laws and the problem. A copy can be downloaded by clicking this link Trees and the Laws
While disputes are always better resolved by the parties between themselves, sometimes the grim reality is that they can’t. When progress at resolving a dispute ceases, getting reputable, knowledgeable, tactical advice should be your next step.
At Inkblack Legal you can look forward to having your dispute addressed fully, while taking the stress off your shoulders to the extent possible. With experience spanning from smaller council-related issues to more serious, high-value contractual disputes, all of the resources you need to find your most suitable resolution are available at Inkblack Legal.
Probate
* Applying For Probate
* Contesting A Will
* Who/How Can Be Executors?
Probate is a term many people are at least familiar with to the extent that it relates to a person’s Will after they are deceased. A grant of probate or of letters of administration is a legal document issued by the Probate Registry.
Applying for grant of probate is not always required, with simple estates possibly being able to be dealt with informally. If there is no will then letters of administration can still be sought from the court.
Obtaining the grant involves an application to the Probate court which will provide details and evidence such that the court can reasonably establish that the will and the deceased are aligned, that all pertinent matters are correct, and that the correct person is granted the legal standing to act as the Executor of the deceased’s estate. Once in possession of the grant of probate the executor may formally administer the estate of the deceased person. The need to get Probate is primarily dictated by the value and types of assets. In eligible situations the estate can be processed informally, removing the need of probate. If there is no will, or no will can be found, ‘letters of administration’ can still be granted by the court.
Often the Executor will be aware of their intended role to act as Executor. When that isn’t the case, a will may be offered to family members by the solicitor, or other paperwork may lead family members to either the Will or the acting solicitor.
Equipped with a Will naming an Executor you can begin preparing an application for grant of probate. The Probate Registry web site provides a lot of information and you can prepare a submission yourself, or you may decide to get some amount of assistance from a solicitor. Some initial considerations which may be of interest are:
- Do I have a valid Will?
- Do i need to get Probate?
- What can be done if no will exists?
- Do I have to act as the Executor?
- Why use a Solicitor to prepare the application?
- Where can I get the application forms from?
- How much does it cost to get Probate?
The considerations for identifying a legal will are contained in the Wills Act 1936 (SA), click here for more. In SA, an application for probate must be made online through CourtSA. To apply, you must be over 18 years and named as an executor in the will. From 26 November 2018, you must use CourtSA to lodge documents for probate matters. The forms can be found by clicking here. As at June 2022 the table of costs to apply for a grant of probate can be found here.
While the information may seem overwhelming, the reality is that each estate is going to be unique. At Inkblack Legal we have successfully assisted, and made direct application for, grants of probate by delivering thorough applications, saving clients money and time needing to revisit their applications. If you are someone needing to decide whether to proceed alone or seek assistance, we will be happy to discuss your situation and offer advice. Please take some time navigating the links as a lot of pertinent detail is available.
Security Of Payment Act
* What Is The SOP Act?
* What Does It Mean For Me?
* Who Can Use The SOP Act?
The Building and Construction Industry Security of Payment Act 2009 (SA), (SOP Act) exists in each state and Territory in Australia. It was introduced to represent the right to progress payments for construction work. The Act applies exclusively to construction contracts, and supply of related goods and services.
Cash flow is vitally important in the building and construction industry. The SOP Act was introduced with the aim of stamping out delayed or non-payment of claims to contractors, to provide an adjudication process, and to keep cash flowing as a consequence.
The SOP Act doesn’t restrict or eliminate any contractual rights, nor any other method of remedy that a claimant may have. When you just cannot get your progress payment you can turn to the SOP Act to see if your circumstance applies.
The following provides a very brief step through of the key steps of the SOP Act adjudication path.
- A claimant (person owed progress payment) serves a payment claim on the applicable party, identify the works and the claimed amount,
- The payment claim MUST state that it is made under the SOP Act.
- The respondent(the person that received the payment claim) may reply to the payment claim. Section 14-Payment Schedules provides detailed requirements to make a legitimate payment schedule submission.
- Where a payment schedule is not provided, or the payment schedule fails to pay the whole or part of the progress payment claim, the claimant can refer to Section 15 to find the appropriate course of action.
- At this point, where whole or part of the payment claim is not forthcoming, the claimant can proceed to have the dispute adjudicated. If so, the respondent will have an opportunity to provide a response.
- The Adjudicator will form a decision, prepare a written report, and deliver an invoice to both parties. Only when one or both parties have made full payment will the determination be released to both parties.
Each step of the process has strict time limits, with many other particularities associated to each step. But the process can begin with a payment claim which has identified on it somewhere that it is being presented under the Security of Payment Act SA (2009).
At that point the claimant has secured the right to utilise the SOP Act to push a progress claim along to a decision in short time.
If the payment claim meets all eligibility criteria, then the response needs to be provided within 5 business days. If the respondent isn’t proposing to pay all of the claimed amount, the claimant has up to 20 days to submit an adjudication application and advise the respondent accordingly. The respondent has a further five days to submit a payment schedule. The Adjudicator has up to 10 business days to lodge their findings, pending criteria in Part 3, Division 2, Section 21 of the Act.
It is a specifically targeted process, attempting to provide contractors an efficient, speedy decision path, and, where the claimant is successful, effective payment.
With a long history working in the construction and contract tendering space, Simon is the perfect person to have a chat with if you are scratching your head wondering how to get paid. He will understand your technical drawings, your specific work’s jargon, and all the facts and figures around building, earthworks, construction, and contractual matters. Together you will quickly see light at the end of the tunnel.
Wills
* Considerations For Preparing A Will
* Power of Attorney
* Advanced Care Directives
Taking the steps to prepare your Will can seem too hard, or maybe you don’t think you have enough to justify a will, or, like nearly half of all adult Australians, you are meaning to get around to it.
Leaving a valid will can help ensure the distribution of your estate as you would prefer, even if you have minimal effects. Leaving a will where you hold property and other effects might save your beneficiaries considerable costs of having your estate administered.
Last year comparison site Finders released their research figures about Australians having Wills. The result was that slightly more than 50% of us don’t have a Will. Consider these questions;
- What happens if I die without a Will?
- Who should make a Will?
- What are the options for preparing a Will?
There is a mountain of reasons cited for not having a Will, but getting some professional help may be the push to get your will in place. With professional guidance you can feel more secure that the Will is valid (making challenges more difficult), and that all aspects of your estate are covered.
Not uncommon now is to consider nominating your Power of Attorney, and formalising your Advanced Care Directive at the same time.
A Will is a document that meets legally technical requirements. Those requirements are stipulated in
the Wills Act 1936 (SA), click here for more. For most people it will be of benefit to leave a Will to guide those family members who will have the task of sorting out your affairs. If you leave a Will it can simplify the administration and distribution of your estate. Where no Will is left, a letter of administration can still be granted, but generally the Executor will have a state-imposed distribution methodology to adhere to.
Having a solicitor prepare your Will provides a certainty that the formalities are being adhered to, that your will is in safe keeping, and all matters will be questioned, making it far less likely that anything is overlooked.
Deciding Your Next Move
It can be difficult knowing the way forward when matters are in disarray.
Sometimes it is clear that you need to take action yourself, or respond to another person’s actions.
Please call, especially if your matter is, or could be, time sensitive, so that we can work together to ensure Inkblack Legal can help you.
If you have the time, and prefer, we are happy to receive an email and take things from there.
Unsure If We Can Help You?
At Inkblack Legal we will listen, investigate if appropriate, and if we know you would be better served by other lawyers with more experience in your problem, we will tell you so.
If you would like to have a chat to discuss whether we might be able to be of service to you we are happy to receive your call.
If we can’t help you we are able and willing to offer direction as to who might be more suited to assisting you, should you be interested.