The government is threatening to take my land if I do not negotiate a sale.  What should I do?

Unfortunately, resuming authorities too often tell people to negotiate a sale otherwise they will resume the land.  It is a common myth that Government can resume land without paying anything - this is simply not true.  More often then not, it is better to await a formal taking of land and then to negotiate within a legislative framework.  To negotiate outside of the legislative framework often allows the resuming authority to have the upper hand and take advantage of the inexperience of the landowner.  If land is the subject of a Region Scheme this is a different matter.

The Government is putting a Region Scheme Reservation over my land and tell me not to worry as I will get market value for the land and in the Government I have a ready buyer, is this correct?

You do not automatically have the right to make a claim after a reservation is placed over land.  Injurious affection can only be claimed under certain circumstances, such as when the land is first sold following the reservation being put in place, or following a development condition being imposed that is not acceptable because of the reservation or a development in the reservation being refused.

Triggering the right to claim compensation requires the person who is proposed a development to have a genuine intention to carry out development.  The relevant Government agency (DPI) does challenge the "bona fide" nature of such a development application.  In other words, if you only lodge a development application to trigger a claim, then DPI can refuse to pay injurious affection because the development application was not genuine.  The landowner then needs to challenge this.  Further, DPI is only required to pay for injurious affection to the land the subject of the reservation and not the balance of the land.  L andowners cannot make DPI buy the land.  The injurious affection amount is the difference between the affected and unaffected value of the land without regard to the scheme.  If DPI does elect to buy the land, then they will only purchase it at market value.  Often the market value of land in its unaffected state is a matter of considerable dispute.  The area is a legal minefield and the Government is intent on retaining complex legislation that is favourable to it.

I have Bushforever over my land, what should I do?

Bushforever is a policy.  In my opinion, it ought to properly have been considered to be an amendment to the Metropolitan Region Scheme, but until someone takes this point to the Supreme Court, we are stuck with a restrictive policy over land.  As it is a policy, there is no mechanism to trigger the right to make a claim as a result of being refused to develop or do things with land. 

DPI do, in certain circumstances, negotiate what are termed "negotiated planning solutions".  What this means is the DPI allows you to subdivide adjacent land in exchange for giving up the Bushforever site.   Recently, DPI moved to include a number of Bushforever sites into the Metropolitan Region Scheme.  As a first step, a clear submission based on technical evidence must be put to DPI to reduce the impact of the proposed rezoning.  It is, however, better that the land be included in the Metropolitan Region Scheme.

I have land in an agricultural area and I want to subdivide, can I?

DPI require local governments to put in place local rural strategies.  These strategies restrict subdivision of rural land below 40 ha.  Although it is local strategy, somehow DPI gives itself the final say about what is to be included in the strategy.   Most rural strategies do allow subdivision below 40 ha.  However, such subdivision will be rejected by DPI.  The concern (they say) is the loss of the agricultural base as a resource.  The reality is that DPI does not want the expansion of essential services beyond closely subdivided nodes of development.  Most farmers cannot make a living off 40 ha, and the subdivision of a 40 ha lot will often allow more intensive agricultural pursuits, which allows closer management of environmental factors.  Cornerstone Legal has taken a number of subdivisions of rural land to the Supreme Court from refusals by the Town Planning Appeal Tribunal.  
 

Litigation

I need to go to court, which court must I go to? 

The civil courts in Western Australia include the following:

1. Local Court: disputes up to $25,000 (soon to be $50,000)
2. District Court: disputes up to $250,000 except personal injury matters.
3. Supreme Court: disputes above $250,000 plus injunctions etc.

There are also specialist tribunals that have jurisdiction over certain matters like the Town Planning Appeal Tribunal, the State Administrative Tribunal and the Administrative Appeals Tribunal.  

What is the process of litigation?

In the first instance the solicitor will investigate your case and consider your claim or defence to a claim.  They will then form an opinion in respect of your claim.  Generally the process in legal action is as follows:

1.  (Plaintiff)     Investigate the claim.
2.  (Plaintiff)     Draft a writ with an indorsement of the claim or a statement of claim.
3.  (Plaintiff)     Draft the statement of claim if this is not included with the writ.
4.  (Defendant) Draft the defence to the claim.
5.  (All parties)  Complete discovery (disclosure of all relevant documents)
6.  (All parties)  Exchange of expert reports if relevant.
7.  (All parties)  Court mediation - pretrial
8.  (All parties)  Trial date is set.
9.  (All parties)  Trial.

What is an interloccutory application?

During litigation, it may be necessary to ask the court for certain orders this is done by way of an application to the court.

What is an affidavit ?

An affidavit is evidence about a particular matter.  If one or other of the parties wish to cross examine parties on the basis of their affidavit they may do so by notice.  An affidavit is usually required to support an application.

What is case management?

All matters are managed by a case management registrar, they make sure matters keep moving and attend to "house keeping" matters in respect of litigation.  Registrars are very effective at ensuring parties refine the matters in dispute that go to trial.
 
 

Company Law

How do I make sure a company is doing the right thing?

A company is subject to the provisions of the Corporations Act and the Trade Practices Act, which prevent the company from acting in an unethical manner.  Where a company does act in an unethical manner it, as well as the directors individually, may be the subject of legal action.  

I have shares in a company.  What are my rights?

The Corporations Act 2001 gives shareholders significant rights.  These include the right to demand audited annual reports from proprietary companies, injunctions, rights to take actions in the name of the company, oppression remedies where the company acts in a manner that is harsh, oppressive or prejudicial.  As a shareholder you must be active to ensure the good governance of your company.

What are directors duties, and how can I make sure the directors are doing the right thing?

Directors have the obligation to act in the interests of the company as a whole and not in their own interests.  Where a director takes advantage of their position, they may be the subject of a prosecution, pecuniary penalties or compensation orders.  Where a director breaches his duties, shareholders can also take an action against that director in the name of the company under certain circumstances.

Commercial

I am buying a business, do I need to have a lawyer?

You can buy a business without the assistance of a lawyer, however, buying a business can be a legal minefield.  You would not buy a house without looking inside, so why would you buy a business without having a good look inside.  Too often, Cornerstone Legal finds that businesses are just a shell, or they do not own anything at all.  There are too many scams out there, by engaging a lawyer you at least have a chance of going in with your eyes open.