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Jk

Josh Kaplan

Senior Associate at Marshalls + Dent Lawyers

3 years PQE
Melbourne, VIC, AU
Profile Activity Network
    Jk
    Josh Kaplan agreed with Sandy Rizkallah 's answer on Executor appointment
    about 9 years ago
    Thank you for your question. Yes you can nominate an Executor to handle your estate through your Will before you die. You will need to ensure that you have a valid Will, that you have capacity at the time of executing your Will and that you have properly considered the people who you owe a moral obligation to under your Will.
    Jk
    Josh Kaplan agreed with Richard Partridge 's answer on Shareholders Agreement Query
    about 9 years ago

    There are many things to consider when preparing a shareholders agreement. Most importantly, it's imperative that it is customised to your business and theobjectives of its shareholders. Matters that are customarily addressed in a shareholders agreement include:

    1. Pre-emptiverights:That is, the ability for existing shareholders to have priority over any third party in relation to fundraising activities and any proposed sale of shares.
    2. Voting thresholds and reserved matters:Namely, what level of approval is required by the board and/or shareholders for matters voted on and what matters (above that prescribed by law) are reserved for shareholder approval.
    3. Composition of the board and nominee representatives.
    4. Future fundraisingactivities.
    5. Transfer or shares -processand procedure.
    6. Dividend policies.
    7. Preparation of accounts.
    8. Drag and Tag alongrights - the ability to force a minority shareholder to sell and/or the ability for a minority shareholder to participate inthe sale of shares by a majority shareholder(s)
    9. Matters which may trigger a compulsory exit by a shareholder (for example, shareholder default or death or disability of a key associated individual)and how such interest is valued
    10. Restrictive covenants - do you seek torestrict a shareholder from having an interest in a competing business?
    11. The establishment of business plans and budgets.

    My advice would be to seek legal assistance in the drafting of this agreementand not rely on template documents.

    Kind regards

    Richard Partridge

    Gadens

    Jk
    Josh Kaplan answered a question
    1 lawyer agreed | over 9 years ago

    Landlord trying to dictate business type

    Hello. Thank you for your question. In the lease there should be a description of the "permitted use" by which you as tenant can use and enjoy the premises. If this use is described exclusively as "cafe" (or similar) in the lease then you may not have the right to use the premises as a retail outlet. It is also important to make sure that you have approval from the local council and other relevant authorities to use the premises in the way you intend. It may end up being in the landlord's commercial interests to permit you to combine a retail component to your business with the cafe component as the more successful a tenant's business the greater the potential there is for a landlord to secure a long term rental income. You may wish to raise this point with the landlord in your negotiations.
    Property & Planning Law Preparation or Review of Commercial leases VIC AU
    Jk
    Josh Kaplan answered a question
    1 lawyer agreed | over 9 years ago

    Is independent advice necessary in commercial situations?

    Hello. Thank you for the question. As guarantees in commercial leases come in many different forms, it is important to obtain independent advice with respect to the wording of the guarantee. It is important to remember that the purpose of the guarantee is for the guarantor to be personally liable for a breach under the lease by a tenant.
    Property & Planning Law Preparation or Review of Commercial leases VIC AU
    Jk
    Josh Kaplan answered a question
    1 lawyer agreed | over 9 years ago

    Indexed rent

    Hello. Thank you for the question. If you are approaching a rent review period in the lease and the lease indicates that the rent review mechanism attributable to that rent review period is a CPI review, then a CPI review will need to be instituted.
    Property & Planning Law Preparation or Review of Commercial leases VIC AU
    Jk
    Josh Kaplan agreed with Sandy Rizkallah 's answer on Contesting will
    over 9 years ago
    Contesting a Will occurs when an eligible applicant disputes the terms of a Will because they have been either inadequately provided for or totally excluded. Even in circumstances where there is no Will and the Estate is determined on intestacy, you may still be eligible to make a claim. Contesting a Will is also known as a Family Provision claim (FPA claim).
    Family provision legislation in each State allows the Court to override the terms of a Will so as to provide proper maintenance and support for an eligible applicant. In determining whether provision should be made for an eligible applicant, the legislation also sets out the relevant factors which the Court may consider.
    There are strict time limitations which apply to contesting or disputing a Will and the relevant rules and procedures differ in each State.The legislation governing family provision claims in New South Wales is the Succession Act 2006.In NSW you have 12 months from the date of death to contest the Will.
    Eligible applicants in each State will vary. In NSW, a spouse/defacto, child, former spouse, member of the household and grandchild of the deceased are eligible to make a claim.

    Jk
    Josh Kaplan agreed with Law Advisor Research Team 's answer on Need legal advice on dropshipping (pharmaceuticals)
    over 9 years ago
    Hi there. Your business arrangement raises a number of legal issues. First, purchasing products from a manufacturer and then reselling them in your own packaging may amount to ‘passing off’. Passing off refers to a legal action which protects goodwill and reputation built up by the use of a trade mark or business name of a product or service. Depending on the arrangement you have established with the manufacturer (if any), they may have a legal claim against you for passing off their products as your own, especially if done without the manufacturer’s consent.
    Switching the packaging of the products may also raise a number of other issues under Australian law, such as possible claims for misleading and deceptive conduct and infringement of intellectual property rights.
    Second, the supplements you are trading may be considered therapeutic goods. This means they must be registered with the Therapeutic Goods Administration before they can be lawfully supplied in or exported from Australia. There may also be advertising restrictions on how the product is marketed.
    Third, if the products are being imported into Australia, you will need to consider whether the goods are prohibited or restricted. You can find out more information about importation controls at www.border.gov.au. Importation of goods may also have duty and tax implications for your business.
    Jk
    Josh Kaplan agreed with Law Advisor Research Team 's answer on Online startup - Legal bits and pieces required
    over 9 years ago

    Hi there. Launching a start up can be a complex process, and it is great that you are seeking some assistance to ensure everything is done properly.

    The first part of your question is straightforward. If you would like some terms and conditions drafted for you, you should contact a solicitor who specialises in start up businesses. Solicitors in this area develop standard form terms which are tailored to different scenarios, and will ensure you get the best outcome possible for your business.It is an investment in the future of your startup as it will give you confidence that all the legal documents are in place.


    The second part of your question is more complex. There are some problems you should be aware of that may arise with your plan to transfer property to your wife in order to avoid liability to creditors.

    It is possible that the law will not consider the property to only belong to you in the first place. This is because the law presumes that anyone who has worked towards and supported their spouse in property ownership (ie helping to pay the mortgage, or being a stay at home parent, cooking, cleaning and supporting their spouse) may be entitled to a share of the property even if the property is not in their name. This is what is called a “constructive trust” and it means that transferring it to your wife may not protect your house from the creditors as you will still be deemed by the law to own part of it.
    In addition, there are financial implications to transferring property to another person. The first is that you will have to pay stamp duty on the transfer, which will be calculated on the value of the property. This can be quite costly, so it is something to keep in mind. There are also potentially capital gains tax consequences. Besides, transferring the property may not end up helping you: evenif you transfer your property to someone else, a lender may still require that the house is security to any loan or that the legal owner of the house acts as guarantor for the loan.
    As you probably already know, asset structure and financial planning is a complex issue, so it is important that you contact a solicitor. They will help you figure out what is the best way to protect your assets in the event your start up is unsuccessful. It is important that you know exactly what risks you are taking, and a lawyer can help with this.


    Jk
    Josh Kaplan agreed with Law Advisor Research Team 's answer on Do I need a solicitor to review a building contract?
    over 9 years ago
    Hi there. Hiring a solicitor to review a contract is usually done as a risk minimisation measure. A solicitor will have experience in this type of contract, and will be able to assess whether or not the terms of the contract are fair to you, or whether there any any defects with them which may risk litigation in the future.
    There are a number of things you should think about when deciding to hire a lawyer. You will have to ask yourself how much the contract is worth to you, both in monetary terms, and in terms of time if there are issues with it that hold up work or lead to work being done inadequately or as a result of significant delays. Then you will have to consider whether you are in a position enter into negotiations or litigation if issues arise.
    With this in mind, if your building work is for a very small renovation, you may consider that the amount of cost and effort of seeing a solicitor is not worth it as compared to how much you are spending on the renovation. This is a decision you have to make with regard to the risks.
    Building disputes are notoriously messy and expensive, and are one of the most common types of civil disputes at small claims tribunals and in the courts. Seeing a solicitor to review a contract before work starts can help guard against future problems. You will most likely find that many small law practices offer standard flat rates for routine contract reviews such as this.

    Jk
    Josh Kaplan agreed with Sam Wong 's answer on Intellectual property protection
    over 9 years ago

    Firstly, under Australian law, software that you produce will generally be protected by copyright - provided, of course, that it is entirely your own work and you have not used any infringing material. Secondly, assuming that the web app also contains graphics, photos, videos, music, etc., copyright will subsist in those as well - again, provided that they are your own work. Copyright will generally vest with the author unless it has been assigned in writing.


    Note, however, that copyright does not protect the idea; rather it protects the expression of ideas in a material form. Copyright will not stop a third party from producing a web app with the same or similar functionality to your own app. Please also note that if you intend to distribute your web app internationally, different laws may apply in relation to (for example) the subsistence of copyright and exceptions to infringement.


    Software can also be patentable if it meets the parameters of a 'patentable invention' as defined in the Patents Act 1990(Cth).Depending on what the app actually does, it may be patentable, but you will need to seek professional advice from a suitably qualified patent attorney to determine the patentability of the web app. If you are successful in obtaining a patent, you will obtain exclusive rights to monopolise the product covered by the patent.


    Please also seehttp://www.ipaustralia.gov.au/get-the-right-ip/patents/about-patents/what-can-be-patented/patents-for-computer-related-inventions/ for information pertaining to software patents.

    Jk
    Josh Kaplan agreed with Dudley Kneller 's answer on How to request a copyright licence
    over 9 years ago

    Hello - good question. You are on the right track and it is important to make sure you have the legal rights to use this content before you incorporate it into your app. Emailing the content owner is a good start and you don't have to provide anything more than a summary of your app along with your request. This will help reduce the risk of them "copying" your idea.


    Patents are a different thing altogether and would not protect your "idea". Once you have developed your app, copyright laws will provide you with a measure of protection.


    If the content is important to include in your app you will need to ensure you obtain appropriate rights to use it. A lawyer can assist you with your initial request and can help make sure you have broad rights to use the content if the owner agrees to license it to you. Good luck!