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Hi, I hope you like our newsletters.  We try very hard to pick a variety of issues, so that one or two may be of interest to you.
Regards, Philip.

Self-Managed Super Funds and Powers of Attorney

There was an interesting case in the Old Supreme Court in 2018 in relation to Narumon Pty Ltd, which concerned the control of a Self Managed Superannuation Fund (SMSF) by the Attorney appointed under a Power of Attorney for financial matters, following the incapacity of the sole director of the corporate trustee of the SMSF and the exclusion of a binding death benefit nomination.
If you have a SMSF, now is the best time to make an appointment with Philip or Amanda of our office to review your SMSF Deed, with the Powers of Attorneys and Wills of all the trustees.  This is the best way to make sure your money goes exactly where you want.

(Deceased) Estates with Overseas Assets/Beneficiaries

Assets in deceased estates largely fall within two categories: immoveable and moveable (examples of the latter class are jewellery, furniture and the proceeds of sale of real estate, if held in Australia).
The general rule for moveable property is that it is governed by the laws where the person lived at the date of death.
However, the law applying to immoveable property is determined by the ‘lex situs’ or the law of the location of the property.  Thus, if you leave a London apartment to your son, the (tax) laws of England will apply to that immoveable event.
But if your daughter lives and works in Japan, and you leave her some real estate in Australia, she will be taxed in Japan on the value of that real estate, although the mechanism is complicated.
These days, with more and more Aussies living and working overseas, it is even more important to see Amanda or Philip at our office to discuss your estate plan.

Is Your Family Trust really Protecting Your Assets?

Some people are surprised to learn that their discretionary trust cannot be relied upon to protect assets from a former spouse in a family law property settlement, and that a history of distributions to a spouse from a trust during a relationship can potentially turn these structures into a minefield following a relationship breakdown.  Unintended consequences can also arise where loans have been made to the trust by a child, even where the loan may have simply been for tax effectiveness.

According to Accredited Family Law Specialist, Amanda Tomlinson, “the scope of the Family Court to lift corporate veils and peer behind family trusts has made these structures fallible in the context of a family separation.”

So, how can assets be protected from a former spouse?  Ms Tomlinson says, “Binding Financial Agreements, sometimes referred to as pre-nups, can be entered into, as early as before or during a de facto relationship or a marriage, allowing spouses to agree on how assets would be divided in the event of any future separation.”  While Binding Financial Agreements can also be entered into after a separation, it can be more difficult to reach an agreement at that stage.  Therefore, it is important to be proactive and invest in a Binding Financial Agreement before or during a relationship.

The 2016 ABS Census statistics revealed the median duration of a marriage, to the point of separation, to be about 8 years.  Earlier data for de facto relationships that had ended revealed a far shorter duration.  With some relationships proving to be more transient than may be initially expected, can you afford not to protect your and/or your childrens’ assets?

For more information,
contact your family law team at RobertsLaw.

Housing Market under the pump provides an upside for canny buyers

It’s a tough outlook for residential property – but there can be opportunities for the serious long-term investor at times like these, according to Stuart Wemyss.
Auction clearance rates have also fallen dramatically over the past year, especially in Melbourne and Sydney, where they were above 80 per cent this time last year.  Recent figures suggest that auction clearance rates have fallen below 50 per cent in Sydney and Melbourne.

When you get to the heart of what’s been happening in residential property, the trigger for the squeeze has been the tightening in prudential lending standards and the banks raising interest rates on investment and interest-only loans.  In my experience, most peoples’ borrowing capacities have been reduced by 20-40 per cent or more over the past 24 months, which is the most severe contraction in credit policy in the 16 years I have been in business.

Typically, experienced property professionals consider an auction clearance rate of about 60 per cent to represent a balanced property market.  That is, a market that is neither dominated by buyers nor sellers.  To put it another way, the balance of power probably rests slightly in favour of property buyers, not sellers.  Also, it appears that prices are relatively stable for Sydney, which has experienced a price correction.

Most property buyers don’t appreciate that property prices tend to move in a non-linear fashion rather than incrementally over time.  As economist Don Stammer has mentioned, the history of property prices is closer to a “step-like-path”.

For example, the price of an average two-bedroom apartment in a particular suburb might consistently be around $500,000 as supported by several sales over many months.

Without any warning, due to market demand, the price of a comparable two-bedroom apartment might suddenly jump to say, $530,000 over the course of only one to two weekends.

However, property buyers tend to struggle to adjust their personal expectations in line with these market movements.  That is, they struggle to reconcile why ostensibly the same property now costs $30,000 more than it did a week ago.  But this is how the property market tends to behave.

That is, prices can jump significantly over very short periods of time and as such, set a new benchmark.  If property buyers don’t quickly adjust their price expectations in line with the new market levels, they risk getting left behind.

Therefore, it stands to reason that operating in a cooler market or a market where prices are relatively stable, makes it far easier for property buyers to assess the fair market value of real estate.

Understandably, a bullish property market tends to instil confidence in the minds of property buyers whereas a falling market can make property buyers feel uneasy and, as a result, delay or forfeit purchasing.

People think: “If everyone is out buying property, then it must be a good time to do so.  “However, when it comes to investing, such social proof is often unhelpful.  A contrarian approach typically produces superior investment outcomes.  As Warren Buffet says: “Buy when others are fearful.”  That makes sense in the property market, too.

Interestingly, according to the Russell Investments/ASX Long-term Investing Report (it is typically used by investors to rank the best-performing asset class for the past 10 and 20 years) residential property investment returns have compared favourably to other asset classes over the 20 years to the end of last year.  Residential property has returned 10.2 per cent, Australian shares 8.8 per cent and global shares 7.4 per cent over the past 20 years.

This report suggests that, if you invest in an investment-grade property, you could enjoy very healthy investment returns if history repeats itself…and it invariably does in every investment class.

Article by Stuart Wemyss – The Australian. July 2018
Stuart is an independent financial advisor and author of Investopoly: The 8 Rules for Mastering the Game of Building Wealth.

Contact Cholm at our office for all of your conveyancing and property needs.


“We must first grow the tree before tasting of its fruit.” – Philip Roberts

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Ph: 07 5530 5700
Suite 8, 60 Railway Street, Mudgeeraba QLD 4213

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