Bowen Buchbinder Vilensky

Archive for May, 2014

Two Things to be Sure of When Designing Your Wedding
Tuesday, May 13th, 2014

damienbowen

By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers

13 May 2014

Australia is a relaxed country to get married in.  Your wedding ceremony can be on a beach, in a treehouse or even, as some prefer, in an aquarium surrounded by tropical fish.  Long gone are the days of churches or registry offices being the only options.

Despite the more relaxed approach to venues, from a legal perspective there are still a couple of things you need to be sure of for the marriage to be valid.

Registered marriage celebrant

You can only be married by a registered marriage celebrant or a registered Minister of Religion of a recognised denomination.  You and your spouse-to-be may both be Elvis Presley tragics, but unlike Las Vegas, hiring an Elvis look-alike to perform the deed won’t cut it legally in Australia – unless, of course, your Elvis impersonator also happens to be a registered marriage celebrant.

It isn’t often that I come across someone whose marriage is invalid because of who married them.  But this can happen when people think the rules about getting married have all been thrown out.  Finding a registered marriage celebrant is easy if you go online.

Using the right words

The Commonwealth Marriage Act requires the celebrant to explain to the bride and groom the nature of a marriage relationship.  The celebrant must use these words or words to the same effect:

” I am duly authorised by law to solemnise marriages according to law. Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter. Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”

Once this explanation is given, the husband and wife to be must, in the presence of the celebrant and the witnesses say to each other the following word or words to the same effect:

” I call upon the persons here present to witness that I [a] take you [b] to be my lawful wedded wife (or husband).”

It is very common these days for husbands and wives-to-be to make up their chosen promises – the time-honoured “love, honour and obey” having declined in popularity.   Making pledges more personal can certainly enrich the ceremony and make it more meaningful for everyone involved.  The important thing is to ensure that the wedding vows don’t get left behind in the romantic haze.  From a legal perspective they are all important!

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There’s a Mistake on Your PPSR Registration: What Now?
Monday, May 5th, 2014

CraigH

By Craig Hollett, Director at Bowen Buchbinder Vilensky Lawyers

5 May 2014

The Personal Property Securities Act 2010 (“PPSA”), which came into effect in January 2012, has had a big impact on many Australian businesses.  PPSA legislation created the Personal Property Securities Registrar (“PPSR”), a national, online register, requiring interests in personal property to be registered.    Such interests may be as small as a plasma TV bought on hire purchase from Harvey Norman or as major as a multi-million dollar commercial property lease.

 So, what happens when someone makes a mistake filling in a PPSR online form?  The PPSA says that a mistake will make a registration ineffective if it is ‘seriously misleading.’  But the term ‘seriously misleading’ has not been defined.

As it happens a mistake was made in NSW when, instead of entering a company’s ACN, its ABN was used.  When the case came to court (Future Revelation Ltd v Medica Radiology and Nuclear Medicine Pty Ltd [2013] NSWSC 1741) Justice Brereton said, in his decision, that it is well known the PPSA is modelled on and derived from similar legislation in Canada and New Zealand.  The Court therefore looked to a Canadian decision to assistance in defining the term ‘seriously misleading.’

Canadian case law suggests that the test for whether a mistake is “seriously misleading” is whether it will result in the registration not being disclosed upon a search.  In Future Revelation, such a search would have identified clearly enough the secured party, even though its ABN and not ACN was stated.  The judge’s view was very clear that this defect was not seriously misleading or indeed for that matter misleading at all.

This is unlikely to be the last word on this issue as the application in Future Relevations was made urgently on an ex-parte basis and the situation could well differ should this matter return to the Court for further argument or if a similar matter is brought before the Court.

The important lesson to take away from this decision is the importance of checking and double checking information contained on the PPSR at the time of registration to ensure this sort of issue does not arise, because it may render the relevant security interest ineffective.

If an error is discovered, then it may be possible to amend the registration (see http://www.ppsr.gov.au/ForBusiness/Howtoregister/Pages/default.aspx) and a party affected by an incorrect registration can demand the registration be amended (see http://www.ppsr.gov.au/AsktheRegistrar/PracticeStatements/Documents).

Remember: when in doubt, consult a lawyer.  Most of us don’t charge for an initial phone conversation to decide if your own query needs further action.

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