Bowen Buchbinder Vilensky

Archive for August, 2014

How Best to Submit an Insurance Claim?
Tuesday, August 26th, 2014

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By Les Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

26 August 2014

What’s the best way to submit an insurance claim.  In three words: through a lawyer.  Of course, if it’s a straightforward and relatively minor claim – for example, when you discover someone has reversed into your car, denting the passenger door and causing a couple of hundred of dollars worth of damage – there is probably no need or point involving a lawyer.

But for larger and more complex matters, legal advice can make all the difference because the wording of an insurance claim is extremely important.  I want to make it abundantly clear than under no circumstances should an insurer be lied to or deceived.  But getting advice on what information must be included in any claim form submitted to an insurer, and how to word this information, is critically important.

I have been involved in cases where significant disability claims have been paid out, while others, that seemed identical, were not.  The difference in outcomes was likely caused or contributed to by the way the claim form was completed.

If an insurer rejects your claim, that’s not the end of the road.  You can seek legal help to have a letter written to the insurer demanding a full explanation of the basis of rejection of the claim.  The grounds on which the claim has been rejected may be able to be contested and other arguments raised in support of your case.

If the insurer still refuses to accept the claim in part or in whole then, you may then have the option to commence legal action against the insurer for breach of the insurance contract and/or on other grounds, which the insurer will be required to defend.

Whilst current statistics suggest that around 70% of these kinds of disputes are settled during the course of the litigation and mediation process that occurs before going to trial, given the protracted nature of the process and the potentially high legal costs associated with it, you would be well advised to use the services of a fixed price fee lawyer. Doing so provides more peace of mind about costs, and also helps ensure that the momentum of the action is maintained.

In summary, for the quickest and cleanest result, when submitting an important insurance claim, get help from a fixed fee lawyer.

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The Benefits of a Shareholders Agreement
Friday, August 8th, 2014

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By David Vilensky, Director at Bowen Buchbinder Vilensky

8 August 2014

People who join together to form a company should consider entering into a shareholders agreement.  In essence, a shareholders agreement is a de facto partnership agreement and it supplements the constitution of the company.

A shareholders agreement protects the respective rights of each co-owner if their relationship were to turn sour.  The alternative could be a legal deadlock from which there will be no winners.

If your preferred entity is a unit trust, unit holders of a unit trust (the equivalent of shareholders of a company) can similarly enter into a unit holders agreement to supplement the unit trust deed.

A shareholders agreement provides a clear statement of how the co-owners plan to operate the company.  There is no such thing as a ‘standard’ shareholders agreement.  They are tailored to suit the particular business and needs of the participating shareholders and directors.  However, usual provisions in a shareholders agreement include:

  • Contingency plans that will be triggered by defined events, such as death or divorce or a take-over offer from a third party;
  • The terms on which one co-owner can buy out the interest of another, and the basis on which the business will be valued for that purpose;
  • A stipulation of a non-competitive period so that if one co-owner leaves they are unable to approach customers or suppliers or compete in the same market for a certain period;
  • Agreement as to the allotment of further shares;
  • Rights relating to the appoint of directors;
  • Amendments to the company constitution;
  • Agreed procedure for the sale of shares;
  • Signing of cheques drawn on the bank account of the company;
  • The employment by the company of any of the directors of the company;
  • Properly tailored dispute resolution processes;
  • Allocation of roles and duties in the business operated by the company;
  • How the company is to be funded.

Shareholders agreements and unit holders agreements provide a valuable resource in resolving disputes and clearly determining the rights of parties.  These in turn create certainty and stability in business relationships.

If you would like advice or assistance in this area please contact David Vilensky, Craig Hollett, Morgan Solomon, Tegan Short.

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