OUR SERVICES

• Commercial & Business Law
• Contested Wills, Disputed Wills, Challenged Wills & TFM Claims
• Debt Recovery, Court Enforcement & Collection
• Family Law
• Retail Leases & Commercial Leases (Accredited Specialist)
• Litigation
• Powers Of Attorney
• Property Law including Conveyancing & Town Planning
• Risk Management & Insolvency
• Trust Deeds & Legal Structures
• Wills, Probate & Estate Planning

DEBT RECOVERY, COURT ENFORCEMENT & COLLECTION

Regular reviews of major client’s accounts can avoid bad debt buildup.

If you are faced with bad debts, we can assist in the recovery process and are experienced in all courts.

We handle all aspects of litigation from:-

•  Initial Complaints
• Statutory Demands
• Substituted Service/Warrants of Apprehension
• Warrants of Possession
• Seizure & Sale of Property
• Attachment of Earnings Orders
• Charging Orders imposed over securities
• Garnishee Orders
• Attachment of Debts
• Installment Orders
• Bankruptcy and Winding Up of Companies.

WE CAN HANDLE ALL DEBT RECOVERY SWIFTLY AND ASSERTIVELY

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LITIGATION

Litigation can be made against you or generated by you from many parties including:-

• Employee
• Customer
• Distributor
• Supplier
• Partner
• Lessor or Lessee
• ATO
• ACCC
• VCAT

WE CAN DEAL WITH ALL TYPES OF LITIGATION SWIFTLY AND ASSERTIVELY.

We are experienced in all courts including:-

• Magistrates' Court
• Federal Magistrates' Court
• County Court
• Supreme Court
• VCAT
• ACCC

We handle all types of Litigation including:-

• Lease Litigation
• Employment Disputes
• Partnership Disputes 
• Will Disputes & Estate Disputes
• Debt Recovery Litigation
• Commercial Litigation
• Business Litigation
• Property Litigation & Building Disputes
• Intellectual Property Litigation
• Franchising Litigation
• Insolvency & Bankruptcy Litigation
• Town Planning Disputes
• Sale & Purchase of Business Litigation

Please call our team of experienced litigators to find out if we can assist you in your action.

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LEASES (Accredited Specialist)

You can check with our Accredited Specialist that your lease provides you with the best provisions possible.

• Accredited Specialist with the Law Institute of Victoria
• Member of the Commercial Leases Committee at the Law Institute of Victoria
• Expert Commercial & Retail Lease advice
• Expert Lease Dispute Advice

We act for Landlords & Tenants under Victorian State Law

NEW LEASE OR A RENEWAL OF LEASE - YOUR RIGHTS & OBLIGATIONS

The 2003 Retail Leases Act and the 2005 Retail Leases Amendment Act will have significantly impacted on your leases.  If you have long term leases that are now expiring don’t be caught out by the many changes to your rights & obligations.  Understand the meaning of:-

• The new minimum 5 year lease rule
• New landlord & tenant rights to terminate a lease
• New obligations on landlords regarding structural repairs
• New disclosure statement
• Injunctive relief, matters to be referred to mediation
• New unconscionable conduct provision
• Many new provisions regarding failures to comply
• New controls for security deposits
• New requirements for land tax

If you need expert legal advice regardingh your rights and obligations, contact our Lease Specialist.

RETAIL LEASE DISPUTES & COMMERCIAL LEASE DISPUTES

If both parties to leases were better informed of their rights and obligations, many disputes would not arise.

Parties to commercial tenancy agreements need to be aware of the difficulties which can result from a failure to make proper enquiries.

LANDLORD TO MAKE FULL DISCLOSURE

Prospective tenants should ensure that the landlord has made full disclosure of details such as:

• the condition of buildings, plant and equipment;
• that all outgoings are listed in the Disclosure Statement;
• the landlord’s title to the property including :
• any mortgages over the property (the landlord must obtain the mortgagee’s consent to the lease)
• the actual boundaries of the property, and
• any restrictions on the use of the land.

The landlord’s failure to disclose these matters, coupled with the tenant’s lack of awareness of this obligation, is a frequent, yet preventable cause of disputes.

Tenants should also make their own enquiries about possible developments which might affect their business.   They should, for example, find out if there are any proposed changes to the shopping precinct; or if there are impending changes to planning requirements that might limit their business opportunities.

We can assist Landlords to obtain the necessary information for full disclosure to Tenants.

We can assist the Tenants to force Landlords to make full disclosure.

CHECKLIST

Landlords, for their part, need to undertake their own checks of the prospective tenant and any guarantor to the lease.  Their checklist of issues to be covered in the lease should include:

• the rights of the landlord in the event of the tenant’s breach of the lease
• any limitations on renovations or maintenance work that can be carried out,  including whether the landlord’s prior consent is required
• the state of the premises at the completion of the lease, and any obligations of the tenant for reinstatement of the premises
• whether the tenant is to be permitted to sub-lease part or all of the premises
• when, and in what circumstances, rent reviews should take place including if, and how GST and CPI increases are to be incorporated.
• Obtaining full company searches to check who are the correct parties   

We can assist Landlords with the above checks

EXERCISE OF OPTION

The time for the exercise of an option by the tenant may be extended unless the Landlord gives timely notice to the tenant.

RENT REVIEW PROVISIONS

Rent review provisions in pre 1998 Act leases or renewal of leases derived from pre 1998 Act leases may in certain circumstances be void with the consequence that the rental determined may be quite different to that contemplated by the parties.

If you need legal advice regarding your rights and obligations, contact our lease specialist.

There have been many changes in the Act and regulations in the last few years. Relying on an old lease may expose you to risk and may allow a Lessor or Lessee to avoid certain obligations now covered in the new act.

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COMMERCIAL & BUSINESS LAW

Essential to all businesses are strong agreements with:-

• employees
• suppliers
• distributors
• customers
• Lessors/Lessees
• partners
• and any other entity with whom the business interacts.

Correct protection of Intellectual Property can avoid disputes in the future.

Our experienced commercial lawyers can assist you in protecting your business interests.

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TRUST DEEDS & LEGAL STRUCTURES

If your Trust Deed was drawn up over 5 years ago, many of the provisions contained in the deed may have been superseded by new legislation or a change in regulations. A Variation of Trust can be drawn up to include any of the positive changes that you may benefit from in your business or private affairs.

A review of your company/trust structure will allow you to determine if you have the best structure for your needs with respect to:-

• Land Tax
• Income Tax
• Stamp Duty
• CGT
• and many other duties, taxes & obligations.

Regularly reviewing your company can alleviate bottlenecks later on.

Succession planning is necessary if you want to sell the business or transfer to another family member.

If the business is growing, you may want to think about opening more stores/outlets using a franchising vehicle.

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FAMILY LAW

The breakup of a Marriage and ultimate Divorce is a complex process.  At Cyngler Kaye Levy we endeavour to guide you smoothly through this difficult time.

We can assist you with many aspects of Family Law:-

• Divorce
• Defacto
• Property and spousal maintenance
• Binding Financial Agreements

Dividing the property and property rights may vary according to a number of factors:-

            - Length of the marriage

            - Financial and Non-Financial contributions

            - Future needs (eg. medical)

            - Future income potential

            - Who is in residential care of the children

            - Pre-nuptial and Binding Financial Agreements

An application may need to be made to the courts under the Testator Family Maintenance provisions of the Wills Act.

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RISK MANAGEMENT & INSOLVENCY

Regularly reviewing your exposure to risk is necessary to ensure you are not unduly liable for others debts or deficiencies in obligations.

If you are experiencing financial difficulty, we are able to assist in:-

• winding up companies
• declaring bankruptcy 
• fighting debts.

Speak to our experienced commercial lawyers for advice on the best ways to protect your interests.

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WILLS & ESTATE PLANNING

If you last reviewed your Will more than 5 years ago you may find that your circumstances have changed. A change in circumstances may arise when any of the following occur:-

• Birth of Children
• Death of a Spouse/Executor/Guardian/Beneficiary/Business Partner
• Serious Illness
• Divorce/Separation
• Remarriage/Defacto Living arrangement
• Family Dispute

You may want to include in your Will clauses to provide guardianship or Trusteeship of assets for the children, life interests for certain members of the family in properties etc.

If you do not have a Will, when you die, your assets will be divided in accordance with a strict government formula.

We can advise you if you require a Codicil or a new Will

WHY MAKE A WILL?

•  Divide your assets as to your wishes. If you do not have a Will, when you die, your assets will be divided in accordance with a strict government formula.
• Provide for dependant children & adults
• Appoint a Guardian for your children
• Appoint a Trustee to administer the estate until all dependants become of age.
• Give to Charity
• Determine how the funeral & burial is to be conducted.
• Your structure may warrant creating a Testamentary Trust which in certain circumstances provides relief to the estate and protects the estate from unwanted claims.
•  Provide life interests for certain members of the family in properties etc.

We can draw up a Will to reflect your wishes

WHAT IS A TESTAMENTARY TRUST?

An estate is divided into a number of equal Trusts, each Trust being for the benefit of one person.  That person is called the Primary Beneficiary of their Trust.

Alternatively, the balance of the estate can also be put into one testamentary trust, with your spouse/child nominated as the Primary Beneficiary of that Trust.

Those who stand to inherit from that person, or who are nominated by that person to benefit, are called the Residuary Beneficiaries. They, too have powers over the Trust.

Each Trust is to be in effect controlled by its Primary Beneficiary, to reduce/eliminate the scope for conflict between a number of beneficiaries under a Will (if applicable).

• The first Trustee will be either the Primary Beneficiary or their child or someone nominated by either.
• The Primary Beneficiary and their descendants  have the power to appoint and remove Trustees
• The Trustee needs the written consent of the Primary Beneficiary to vary the terms or the ending date of the Trust, and
• The Trustee needs the written consent of the Primary Beneficiary to lend trust monies and non-market interest rates, authorise use of Trust property etc unless this is for the benefit of, or equal benefit of the Primary Beneficiary
• The Primary Beneficiary may specify how the trust funds are to be distributed at the ending of the Trust (no more than 80 years after the date of death) and if this is not done, the beneficiary’s children/grandparents take in equal parts

The Executor of the Estate retains the power, with the consent of the beneficiary involved, to distribute their portion of the Estate directly to that beneficiary or to another Trust nominated by that beneficiary.

The Testamentary Trust provisions also allows that if a child does not survive – for any children of that child to take on their behalf.

The Beneficiaries may include anyone who is:

1. a descendant of a grandparent of one of your children; or
2. a descendant of the wife/husband of one of your children; or
3. a trust/company (“entity”) in which any of your children, or (1) or (2) above have an interest (“an absolute, contingent or expectant interest”); or
4. a charity or religious institution

The powers of Executors of the Estate and the Trustees are drawn very broadly:-

• to make loans, investments, guarantees, to purchase or dispose of assets etc;
• to pay, with the Primary Beneficiary’s consent,  the whole of a Primary Beneficiary’s entitlement to a particular beneficiary.

Our Lawyers can assist you in setting up a Testamentary Trust

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CONTESTED WILLS, DISPUTED WILLS, CHALLENGED WILLS & TESTATOR FAMILY MAINTENANCE (TFM CLAIMS)

Contested estate claims and other estate disputes or challenges may arise between family members and other potential beneficiaries after a person dies.
• LEAVING YOUR ASSETS - A person can make a Will leaving his or her assets to whomsoever the Will maker pleases.

• OMITTING A PERSON - If a person chooses to leave out a spouse or children from their Will, the principles of testamentary freedom dictate that the person can do this.

HOWEVER:

• ADEQUATE PROVISION - The legislature, as a matter of social policy, regards it as right and proper that a person, in making a Will, should make adequate provision for the maintenance and support of those persons closest to or dependant on him or her.

• "MORAL OBILIGATION reflects a duty resting on a Will maker to make not merely adequate or sufficient financial provision for members of his or her family, but also the obligation to measure the adequacy or sufficiency by reference to what is right and proper according to accepted community standards."

• PART IV CLAIMS - There is legislation that allows a Court to sometimes make alterations to a person's Will. The legislation is found in Part IV of the Administration and Probate Act 1958. These types of claims are known as "Part IV claims".

There may be relatives, de facto spouses and their children who are left without adequate financial provision and who can make a claim against the estate

We act for parties who may be contesting a Will or fighting a contested Will.

We have the experience to challenge or defend all estate dispute claims.

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