Our clients appreciate how responsive we are to their individual legal needs.

Located in Mornington our lawyers are accessible, so when you need us, you know you can rely on us.

I am considering the purchase of an investment property, should I set up a company or trust structure from which to do it?

It is important to structure the ownership of your personal, business and investment assets in such a way as to securely protect those assets to the full extent possible under the law.  Everyone’s circumstances are unique and as such the best ownership structure for one person may not be suitable for someone else. We can assist you make the right choice so that your ownership structure affords your assets the best available protection.


I have an idea for a new business I’d like to establish, where do I start?

There are a number of issues you must consider, including a suitable structure for your business, private asset protection measures available, intellectual property issues and statutory requirements that relate to the particular type of business to name a few.  Allow us to guide you through what can sometimes seem like a legal minefield so that you can focus on the business of growing your business.


I am considering the purchase of an existing business but am worried that the vendor may start a competing business and take all my customers. What should I do?

It is possible to include in the contract of sale a clause preventing the vendor from competing with your business for a specified period of time after the sale within a specified area surrounding the business. The extent of any restraint must take account of the individual business and its market reach. The courts will only enforce a restraint if it is reasonable in duration and geographic area. You should obtain advice from a lawyer on a suitable restraint to protect your investment.


I am the owner of a commercial rental property and the tenant has not paid last month’s rent, what are my rights?

Your rights in these circumstances will be determined by the lease, legislation and common law. It is important to remember that the law also affords tenants certain rights in such cases. Therefore, it is vitally important that you obtain expert legal advice prior to making any decision on a possible course of action.


I am selling my business and the purchaser tells me that GST is not payable in addition to the price because the business is a going concern. I am concerned that I might be left with a GST liability, how do I protect myself in these circumstances?

There are very specific rules set by the ATO which determine whether or not a business is a going concern for GST purposes and ultimately whether GST is payable with respect to the sale of a business. Quite often, what would appear to be a ‘going concern’ may not qualify as such under the legal definition of that term. Even if the business is on its face a GST exempt ‘going concern’ the transaction must be handled correctly in order to qualify for the exemption.  You need to see a lawyer so that (a) your transaction is handled correctly and (b) any GST payable is collected from the purchaser at the time of sale.


I suspect that an ex-employee is using my confidential information, what can I do about it?

The ability of businesses to protect their confidential information requires a provision in an employment agreement to clearly express the prohibition on the use of confidential information. It is also very important that information deemed confidential be treated in such a way – it is no good claiming misuse of confidential information if you are unable to point to the measures put in place to protect it. Let us advise you on your rights and consider instructing us to review your current employment agreements to make sure your confidential information is protected.


I am a franchisee, and the franchisor says it is entitled to increase the franchise fees, what can I do about it?

The Franchising Code of Conduct governs the relationship between franchisee and franchisor. You will need to speak with a lawyer about whether the franchisor has complied with the Code and is acting in accordance with the terms of the franchising agreement.


I have a standard contract that I ask all my customers to sign. Recently a customer claimed the contract could not be enforced because of an ‘unfair’ term, is this true?

Recent changes to the law make unfair terms in standard form consumer contracts void. However, only the courts can determine whether a term is unfair or not. A court may make an order refusing to enforce all or any of the terms of the contract, also, it may vary the contract as it sees fit. Talk to us and we can advise you taking account of your specific circumstances.


I am about to retire and my accountant has advised me to transfer an investment property I own into a self managed super fund. He says I don’t have to pay stamp duty. Is that correct?

It is possible that a transfer of an investment property into a self managed superfund is stamp duty free. Of course this is not always the case as there a very specific provisions of the Duties Act (2000) that come into play. Once you have obtained advice from your accountant about the financial and taxation consequences of any such transfer come and see us and we can advise you whether the proposed transfer is duty free and make sure the correct process is followed so that you can take advantage of any exemption available in your circumstances.


Parenting Issues

Do I have to go to mediation with an authorised family law mediator to be able to go to a Court to obtain family law Orders?

In the absence of urgency and risk, yes.
Urgency arises if a child is withheld without reasonable excuse. Unilateral relocation which makes contact / spend time difficult without a parent’s consent amounts to urgency.
Risk is apparent when a child is exposed to welfare risks and family violence.
If there is urgency and risk then an application can be made for Parenting Orders without a mediation certificate.


I have a Court Order that allows contact/spend time with the other parent. My child is too sick to see the other parent. What should I do?

Courts Orders must be followed unless you have a reasonable excuse. You should advise the other parent immediately your child is sick. You should make an appointment with the child’s doctor for a medical certificate supporting the child not having contact. Take the Court Orders to show the doctor so that he/she is informed that there is a Court Order for contact. You should then inform the other parent that you have a medical certificate saying the child is too ill for contact and offer make-up time. Authorise the doctor to speak to the other parent and inform the other parent that they are authorised to speak to the doctor.

Spousal Maintenance

Can I claim spousal maintenance for living expenses?

If you are or were married or you qualify to be a de facto of the other person and you are unable to support yourself whether:
(a) You have care and control of a child from your marriage or de facto relationship who is under 18 years of age;
(b) By reason of your age or physical or mental incapacity for appropriate gainful employment;
(c) For any other adequate reason,
and the other party is reasonably able to pay spousal maintenance, you may have a claim to meet your reasonable living expenses outside of child support.

Property Questions

My husband/partner will not leave our home and whilst he is not violent or he argues with me and says the house is also his, can I get him to leave?

You may be able to get an Intervention Order which prevents him being in the house. Alternatively, you can request a Court exercising family law powers to make a Court Order for exclusive occupancy of your home. The things that a Court will take into account in making that Order includes the means and needs of the parties, the needs of the children, hardship to either party or to the children and where relevant the conduct of one party which may justify the other party in leaving the home or asking for the expulsion of the other party from the home.


My husband and I separated 4 years ago and have not gone to Court or entered a binding financial agreement. He has recently received an inheritance from his father’s estate. Can I make a claim for part of that inheritance if I seek a property settlement now?

It is within the discretion of a Court exercising family law jurisdiction to include an inheritance as part of the matrimonial pool of assets whether that discretion is exercised to bring an after separation inheritance into the matrimonial pool of assets depends on the circumstances of each case. One of the factors that the Court looks at is who bore the main financial burden in support of a family and also performed a more substantial role as a home maker and parent.



Carroll Goldsmith Lawyers


Our team is here to help.


Level 1, 176 Main St, Mornington 3931
Victoria, Australia

PO Box 628, Mornington 3931
Victoria, Australia

Phone: (03) 5975 7588

Opening Hours
Mon - Fri: 9:00am - 5pm

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