When Trustees are in conflict the Supreme Court has the power to remove a Trustee and appoint a new Trustee in substitution.
In considering the removal and appointment of a new Trustee and in selecting a replacement Trustee, the dominant consideration in the appointment (and removing) is the interests of the beneficiaries.
In addition, the Court will look at three main considerations when appointing a new/replacement Trustee:
The wishes of person who created the Trust.
The wishes do not need to be expressly stated in the Trust deed. The wishes may be inferred from the terms of the Trust, or by the identity or description of the original Trustee.
Who will promote the interests of the beneficiaries.
A Trustee should not be appointed with a view to promoting the interests of some beneficiaries in opposition either to the wishes of the settlor or the interests of the other beneficiaries.
The purpose of this is to avoid a conflict of interest. This is reflected in the Court’s (general) preference to not appoint a beneficiary or a relative of the beneficiary, as the new/replacement Trustee.
Whether or not the appointment will promote or impede the execution of the Trust.
The Court will also consider the financial resources of the Trust and any relevant experience of a suggested Trustee.
In circumstances where there is real (not perceived) conflict, the Court will normally appoint an independent Trustee, such as a Trustee company or an experienced legal practitioner.
The Court will need to be satisfied that the new/replacement Trustee adequately represents all of the beneficiaries’ interests, and will carry out his/her or its duties fairly.
The Court may also impose safeguards as to the conduct and administration of the Trust by the new/replacement Trustee.
The Court may also order the exiting Trustee to provide information as to its conduct and management of the Trust.
The risk in these proceedings is that the Court may also make orders penalising the exiting Trustee (personally) for any conduct that is in breach of his/her or its duties.
The issue is always who will bear the costs of the proceeding. In some circumstances the costs will be borne by the Trust itself, in other circumstances the costs could be borne by the exiting Trustee, or the applicants seeking to appoint the new/replacement trustee. It depends upon how the parties have conducted themselves into the lead up to the proceeding and during the proceeding itself.
If you are a Trustee and involved in a potential conflict involving a Trust you can call Kliger Partners Estate Group on 8600 8885 to discuss.
Have you ever wondered what an AUSkey is and how to use it?
An AUSkey is a single key to access government online services. In the future, you may no longer need different user IDs and passwords as AUSkey becomes accepted by more government agencies for their online services.
Although an AUSkey is optional, it simplifies the way you can interact with various government agencies and reduces the number of usernames and passwords you need.
There are two types of AUSkey available, an Administrator or Standard AUSkey.
An Administrator AUSkey gives you access to government online services and sensitive information about the business you represent, it gives you the ability to manage all AUSkeys linked to the business ABN.
More commonly used, a standard AUSkey will give you access to most government online services and allow you to manage your own individual AUSkey.
Jump online at: https://abr.gov.au/AUSkey/Registering-for-AUSkey/ to register your AUSkey.
Keep in mind you can only use your AUSkey with participating Government Agencies, click on the link below to find out where you can use your AUSkey:
Okay, so you have planned for months, maybe even years and finally you are in control of your own destiny.
You have your service offering, your target market and enough confidence to start trading on your own but where do you find customers?
In the age of mobile applications, search engines and tablets it is highly likely that your potential customers will be looking for your services by searching on-line. According to accounting software giant MYOB, this time last year (August 2011) only 39% of Australian businesses used a website for their business. Now if you don’t have any competition within your industry then not being on-line may not be an issue as you have already cornered the marketplace. However, for those of you with competitors, by having a website your potential customers may actually be able to find your business by the mere fact that you are on-line. For example, there may be 10 businesses which offer the same services as you and by having a website, you could appear ahead of more than half of your competition – even if they have been operating for 15 years. Not bad for a new business! (more…)
The proportion of businesses stating they used cloud computing has remained constant at an average of 16%. This question was asked for the first time in the previous survey.
There were some significant differences within business categories, such as:
• Franchisors (54%) and franchisees (28%)
• Businesses whose revenue was up in the last 12 months (29%)
• Businesses with a website (28% compared to only 8% of businesses without)
• Business, professional and property services (27% compared to 9% of construction and trades)
• Importers (26%) and exporters (31%)
• Small businesses (25% compared to 14% of micro businesses and sole operators)
• Start-ups (24%) and establishing businesses (26%) compared to 9% of established businesses
• Businesses mainly working outside of the business (22%) compared to 10% of those only working from the business premises
• Gen X business operators (20% compared to 11% of baby boomers)
In the February 2013 Business Monitor survey on which this report has been based, Australian business owners and managers (herein known as ‘operators’) reported similar levels of revenue performance over the previous 12 months as they did in the previous three surveys. While 39% reported a decrease in annual revenue, only 18% reported an increase. 40% said revenue has been steady and 3% were unsure. As seen in the table below, there were no marked differences in positive annual revenue results by geographical location in this research wave. By industry, the only significant difference was in the manufacturing and wholesale sector. More than half (52%) reported an annual revenue fall.
In this age of austerity, innovation is key to maintaining your revenue streams, investments, research and development. For these reasons, protecting your business’ intellectual property is an essential requirement. Currently, Australia has some of the most effective intellectual property protection systems globally, ranking number 8 in the world and 2nd in the Asia regions.*
Making sure that you have lined up your patents, trademarks and any distinctive design elements including your branding is imperative. On a basic level this will be covered by IP Australia, the commonwealth agency that is responsible for granting the rights over each of the aforementioned components. It is important to note that the agency also offers services to educate and inform the creators of their protective rights and to understand the overall Intellectual property protection scheme. (more…)
If you are looking for financial support, advice, or education and training programs to help you improve your business, the Government can assist you through a range of funding and support services for all aspects of your business, from research and development to management and export. Click Here (more…)