Q: The doctor stated that it was cancer. It is not progressive, and I will not die soon. However, I would like to take this opportunity to leave a will. What do I need to be aware of when drafting a will.
A: As Australian laws on wills vary by state, a brief description will be provided in relation to the NSW Succession Act 2006 (NSW).
There are many things that need to be taken into consideration when drafting a will. First of all, in my experience, if the inheritance is divided equally among family members, there is a very low chance that a dispute will arise. However, special consideration must be given if preferential treatment is given to certain heirs.
Additionally, the assets may not be distributed according to the will. If it is determined that the testator does not have legal ability due to conditions such as dementia or mental illness or the testator is determined to have been unduly affected when preparing the will, the will in itself will become invalid. Furthermore, spouses and children are to some extent protected by the law regardless of the contents of the will.
In order to avoid disputes regarding the will, it is most desirable to use the legally required format and signature method. In other words, the will must be in writing and signed by the testator and at least two witnesses. However, even if the will does not meet these requirements, the court may still recognise its validity. In some cases, wills written on an iPhone app are considered valid and in other cases a video recording of a will can also be considered valid. However, it costs money and time for the court to recognise the validity of a will that has not met the requirements mentioned above. It is best for it to be in written format.
Additionally, if assets also exist outside of Australia such as in Japan, as far as I know, in accordance with Japanese law, wills that are recognised in Australia will be recognised in Japan. However, the procedure is still complicated so wills should also be drafted in Japan. You must ensure that the two wills do not contradict each other and are consistent.
Recently, a will preparation kit has been made commercially available. However, it is still best to consult a lawyer so that your intentions are accurately reflected in the will.
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Are you at risk of being penalised for “vague” and “onerous” contractual terms?
Key Takeaway Points: • There has been increasing scrutiny over the use of standard form contracts containing unfair contract terms. • Unfair contract terms are those that (a) cause a significant imbalance in the parties' rights and obligations; (b) are no reasonably necessary to protect a party’s legitimate interests; and (c) would cause detriment to the other party if given effect. • New and increased penalties (which could be up to $50 million) will start applying from 10 November 2023. On 4 April 2023, the Australian Securities and Investments Commission (ASIC), filed a case in the Federal Court against Auto & General Insurance Company Limited (Auto & General) over a contractual term which is alleged to have aided in Auto & General being able to unfairly reject consumer claims. Under the contract in question, customers were required to notify Auto & General “if anything changes about [the customers] home or contents”. ASIC came to the view that the clause: • imposes an obligation on customers to notify Auto & General if ‘anything’ changes about their home or contents, which would have been too onerous, vague and/or impractical; • suggests that Auto & General has a broader right to refuse claims or reduce the amount payable under claims if the customer does not meet the notification obligation, than is available under the Insurance Contracts Act 1984; and • could mislead or confuse the customer as to their true obligations and rights under the contract. Accordingly, ASIC alleges that the contract term is unfair under the Australian Securities and Investments Commission Act 2001 (ASIC Act). What are ‘unfair contract terms’? An ‘unfair contract term’ is unenforceable in an Australian court. Whether a term is “unfair” is determined by applying a 3-limbed test set out in the ASIC Act or the Australian Consumer Law (contained in Competition and Consumer Act 2010) (ACL) as follows: 1. The term will cause a significant imbalance in the parties’ rights and obligations under the contract; and 2. The term is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and 3. The term would cause detriment (whether this be financial or otherwise) to a party if the term was applied or relied on. The ACL specifically protects consumers and small businesses from unfair contract terms contained in ‘standard form contracts’. ‘Standard form contracts’ refer to those where there is an imbalance in parties’ bargaining powers, the contract is based on a template with little scope for negotiations or amendments, and/or are presented on a “take it or leave it” basis. There is a presumption that a contract is a standard form contract, in that the person who prepared the contract has the onus of proving that it is not. Recent amendments to the unfair contract term provisions The Auto & General case follows recent amendments which significantly expand the ambit of the unfair contract terms provisions contained in the ACL and the ASIC Act, both of which demonstrate the government’s focus on enforcement (and in turn the need for businesses to review their legal documentation). A key change is the introduction of civil penalties under the ACL and ASIC Act for breaches of the unfair contract term prohibition, reinforced by significant increases in maximum penalties for breaches under the ACL. These penalties will take effect from 10 November 2023, and addresses the issue of the unfair contract terms provisions having largely been “toothless” until now. A brief summary of the key changes to the law can be seen below: Current Law New Law The unfair contract terms protections apply to a small business contract where one party is a business employing less than 20 persons and the upfront price payable under the contract is under $300,000, or $1 million for contracts lasting more than 12 months. Under the ACL, the unfair contract terms protections will apply to a small business contract where one party is a business employing fewer than 100 persons or has a turnover for the last income year of less than $10,000,000. Under the ASIC Act, the protections will apply to a small business contract if the upfront price payable does not exceed $5,000,000, and one party employs fewer than 100 persons or has a turnover for the last income year of less than $10,000,000. No pecuniary penalties. For corporations, increased penalties up to the greater of: • $50,000,000; • 3 times the value of "reasonably attributable" benefit obtained; or • 30% of the corporation's adjusted turnover during the period it engaged in the conduct. $2,500,000 for individuals. Where a court determines a term in a standard form contract to be unfair, it is automatically void. The court can also make orders for the whole or any part of a contract or collateral arrangement, including that the contract is void. The orders can only be made when a person or class of persons has suffered, or is likely to suffer, loss or damage. The court can make orders for: • a whole contract or collateral arrangement, including to void, vary or refuse to enforce the contract, if this is appropriate to prevent loss or damage that is likely to be caused (i.e. there is no need for actual loss or damage). • on the application of the regulator, preventing a term that is the same or substantially similar in effect to a term that has been declared as unfair, from being included in any future standard form small business or consumer contracts; • on the application of the regulator, to prevent or reduce loss or damage which is likely to be caused to any person by a term that is the same or substantially the same in effect to a term that has been declared unfair. How does this affect you and how can we assist? Sarah Court, the Deputy Chair of ASIC, stated that: ‘Contract terms need to be proportionate, transparent and clear, so any obligations are easily understood and able to be realistically adhered to by customers. They must accurately describe the actual rights and responsibilities of the parties under the contract.’ It is not long until the amendments kick in. As such, we strongly recommend that you review your standard form contracts to ensure no issues arise regarding any unfair contract terms. Please contact us if you are unsure whether your contracts are standard form contracts containing unfair contract terms.
Domestic Violence (DV) in Migrant Communities
In Australia, domestic violence is a serious issue that affects both women and men, with one woman every 9 days and one man every month losing their lives to domestic violence. This issue is particularly prevalent among migrant communities, with victims of domestic violence being more common among migrants and those on temporary partner visas. This may be due to a range of factors, including concerns about their visa status, language barriers, lack of knowledge about government support, limited family networks, lack of alternative accommodation, or financial constraints that prevent them from leaving their abusive partners. Domestic violence includes not only physical violence but also psychological and financial abuse. If you are experiencing domestic violence, it's important to know that there are national and state helplines (service providers) that you can contact to seek assistance. These helplines can connect you with support services that can provide information, assistance, and referrals to local services that can help with safety planning, emergency accommodation, legal assistance, and counseling. Contact details can be viewed via below link. Support Services: respect.gov.au If you cannot speak English, you can request an interpreter to help you communicate with service providers. Some service providers can help you find short-term or medium-term accommodation to escape the violence, including accommodation where you can stay with your children. Qualified professionals such as social workers and counselors can advise you on available services that can meet your specific needs, and they will not force you to take any action against your will. By gathering information about available services, you can be empowered to act when you need to. Remember, domestic violence can happen to anyone, and seeking help is an important step towards ensuring your safety and well-being.
Key changes to Australian employment law
On 6 December 2022, the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 received Royal Assent, amending the Fair Work Act 2009 (Cth). The key amendments to the Fair Work Act are as follows: 1. Casual Conversion – currently in effect Casual conversion is allowing casual employees to become employed on a permanent basis. It is available for an eligible casual employee, being one who: Has been employed for at least 12 months; Has worked regular pattern of hours during the last six months of employment; and Is able to continue working the regular pattern of hours as a full time or part time employee without significant changes. Employers must offer casual conversion within 21 days of an eligible employee’s 12 month work anniversary. This is an ongoing obligation, and employers must consider an employee’s eligibility each year to make the offer. If a casual employee requests casual conversion, employers must respond in writing by accepting or rejecting within 21 days. An employer must have reasonable grounds for rejecting a request, or not making a casual conversion offer. Employers must also provide casual employees with the ‘Casual Employment Information Statement’ in addition to the Fair Work Information Statement, at the commencement of employment. 2. Pay Secrecy Terms – currently in effect The Fair Work Act now gives employees the right to disclose their salary information. It also prohibits employers from entering into a contract (or other written agreement) with an employee which includes a term which prohibits an employee from disclosing their salary or other terms and conditions reasonably necessary to determine an employee’s salary. Any existing employment agreements which do include a pay secrecy term have no effect, and can no longer be enforced. 3. Prohibiting Workplace Sexual Harassment – effective 6 March 2023 The Fair Work Act will prohibit sexual harassment in connection with work. Employers will potentially be made liable for sexual harassment committed by an employee or agent in connection with work, unless they can prove they took all reasonable steps to prevent the sexual harassment. 4. Flexible Working Arrangements – effective 6 June 2023 The amendments allow pregnant employees and employees experiencing domestic violence to request flexible working arrangements. In addition to existing obligations on employers to provide reasons for refusing an employee’s request for flexible working arrangements, employers may only refuse a request for flexible work arrangements if they have: (a) Discussed the request with the employee;(b) Genuinely tried to reach an agreement with the employee about making changes; (c) Had regard to the consequences of refusal for the employee; and (d) The refusal is on reasonable business grounds. Employers must also set out the particular business ground that it relies on for refusing the request, and explain how those grounds apply to the request. The Fair Work Commission will now be able to hear and make orders about disputes regarding flexible workplace arrangement requests. 5. Fixed Term arrangements – effective 6 December 2023 The term of a fixed term employment contract must not exceed 2 years (including extensions). Fixed term contracts may not be extended more than once. Some fixed term contracts are excluded from this rule, e.g. those relating to casual employees, seasonal labour, specialised skill employment and high-income employees. From 6 December 2023, employers will need to give ‘Fixed Term Contract Information Statement’ prepared by the Fair Work Ombudsman. This has not yet been made available. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
Security of Payment NSW - Know your right to receive progress payments for construction works and related goods and services
As a direct or indirect result of the COVID-19 pandemic and uncertainty in a global economy, various issues have been adversely impacting the construction industry, such as an increase in raw material price and supply chain disruption. Particularly, contractors and subcontractors are struggling with their cash flow due to their outstanding payments for the works carried out. Accordingly, security of payment legislation in each state has played a role in ensuring that anyone carrying out construction work, and supplying related goods and services under a construction contract gets paid promptly. This article discusses and explains your rights under the NSW Security of Payment Act, and each state has its own security of payment legislation, which may differ from each other in detail. Know Your Rights In New South Wales, the relevant security of payment legislation is the Building and Construction Industry Security of Payment Act 1999 (NSW) (“SOPA”). The significance of the SOPA is that it grants contractors rights to receive progress payment even if there is no formal written contract or even if a contract says that you are only allowed to receive a payment at the end of works, i.e., after the completion of works. Fundamentally, the SOPA entitles a person or a company, who carried out construction work or supplied construction related goods and services, to receive progress payment. A progress payment means a partial payment for works as the project progresses even if the assigned works are not completed. Therefore, the progress payment facilitates cash flow for contractors and suppliers in the construction industry. Under SOPA, the following rights are granted to you: A right to receive a progress payment at least on a monthly basis; Maximum time limits to respond to claims for progress payments; Maximum payment terms; A right to suspend work in the event of non-payment; No ‘pay when paid’ clause: No need to wait until a contractor you worked for gets paid by a head contractor or principal; and Interest rates applicable on unpaid progress payment. Who is entitled to receive a progress payment? A person or company who, under a construction contract or any other construction arrangement, has undertaken to carry out construction work or supply construction related goods or services in New South Wales is eligible to receive a progress payment under the SOPA.[1] The “construction work” is broadly defined, including construction, alteration, repair, maintenance or demolition of buildings or structures forming part of land.[2] The “related goods and services” also include various related goods and services such as materials for construction or plant for use in construction work, labour service, design or engineering service.[3] While the SOPA is drafted to cover contractors, subcontractors, suppliers and service providers as broadly as possible, it should be noted that there are also exceptions such as those engaged in the extraction of oil, natural gas or minerals. Payment Claims The procedure for receiving a progress payment is triggered by a person entitled under the SOPA (Claimant) making a Payment Claim in writing to the other person who is responsible to make a payment under a construction contract (Respondent) In making a Payment Claim, Claimants must ensure that the following requirements are met:[4] 1) The construction work related to the progress payment must be identified; 2) The amount of the progress payment must be indicated; 3) A statement that a Payment Claim is made under this SOPA must be inserted; 4) A Payment Claim must be served on the Respondent within 12 months after the construction work was last carried out; and 5) A Payment Claim is only made one (1) time in a month on and from the last day of each month in which the construction work was carried out. How to respond to a Payment Claim? The Respondent is required to respond to the Payment Claim by providing a Payment Schedule to the Claimant within 10 business days after receipt of the Payment Claim. By failing to do so, the amount claimed in the Payment Claim is fixed and Respondents are liable for such amount on the due date. In issuing a Payment Schedule, Respondents also are required to comply with the following requirements:[5] 1) A Payment Claim related to a Payment Schedule must be identified; 2) The amount of the payment the Respondents propose to make must be indicated; and 3) If applicable, reasons why the amount in the Payment Schedule is less than that in the Payment Claim and reasons for withholding payment must be identified. Maximum payment terms One of the most important benefits available under the SOPA is that there are statutory deadlines for a progress payment to be made.[6] If the Respondents fail to pay the progress payment by the deadline in the diagram below, such amount is deemed due and payable, and interest on the unpaid amount is also payable at the prescribed rate. Your rights to suspend works A Claimant also has a right to suspend construction work or supply of related goods and services if a Respondent fails to pay the amount by the due date for payment as described above.[7] At least two (2) business days prior to the suspension, the Claimant must serve on the Respondent a Notice of Intention to Suspend Work in writing. As the date on which the Notice is given is not counted, the Claimant is eligible to suspend work on and from the fourth day of the Notice. Please see the above diagram. Once the work is suspended under SOPA, the Claimant is not liable for any loss or damage suffered by the Respondent as a result of such suspension. However, once the whole outstanding amount is paid, the Claimant must resume the work within three (3) business days from the payment date. Don’t wait until a head contractor gets paid The SOPA expressly prohibits and invalidates any clause in a construction contract that the payment of money is contingent on a milestone or an event in other contracts including a head contract.[8] A common example of these clauses is that a payment under a subcontract is made upon the payment by a principal under a head contract or upon the practical completion of a head contract. Such clauses are deemed unenforceable under the SOPA, and you have a right to claim the progress payment regardless of the operation of other contracts. Adjudication A person eligible under the SOPA also can start an adjudication process for unpaid or disputed progress payments. Adjudication is an informal and independent process which an issue or issues are determined by an independent adjudicator regarding the payment claims. The adjudicator’s determination can be enforced as if it is a judgment rendered in a Court. However, the Claimant must file an adjudication application in writing by the following deadlines:[9] Type Deadline When: 1) Respondent issues a Payment Schedule, and 2) the amount in a Payment Schedule is less than the amount in a Payment Claim Within 10 business days after a Payment Schedule is issued When: 1) Respondent issues a Payment Schedule; and 2) Respondent fails to pay the amount in the Payment Schedule by the due date Within 20 business days after a Payment Schedule is issued When 1) Respondent fails to issue a Payment Schedule; 2) Respondent fails to pay the amount in a Payment Claim by the due date; 3) Claimant serves written notice of intention to apply for adjudication of the payment claim on Respondent within 20 business days from the due date; and 4) Respondent has been given an opportunity to provide a Payment Schedule within 5 business days after receiving notice of intention to apply for adjudication of the payment claim Within 10 business days after the end of the 5 business days for Respondent to provide a Payment Schedule after receiving notice of intention to apply for adjudication of the payment claim Detailed procedures, requirements for adjudication and enforcing the adjudicator’s determination will be discussed in future articles. Payment Withholding A subcontractor who has made an adjudication application for a progress payment is also entitled to request a principal contractor to retain money owed to a head contractor to cover the claimed amount.[10] This is called a ‘payment withholding request’. Upon receipt of the payment withholding request, the principal must retain the amount of money to which the payment claim relates.[11] When a successful outcome is given in the adjudication process, a subcontractor is able to recover the withheld money from the principal through the procedures set out in the Contractors Debts Act 1997 (NSW). How can we assist If you are involved in construction work in New South Wales, the SOPA entitles you to claim the progress payment and have protections accordingly. However, your rights under SOPA may vary depending on your satisfactory fulfilment of requirements and on whether you took proper actions in a timely manner. Although the SOPA sets out a statutory regime for prompt payment for construction work, there are still a number of disputes arising from unpaid progress payments in a construction contract, which ends up with unsatisfactory outcomes for unpaid contractors and suppliers. If you are unsure what rights you have in your construction payment issues, H & H Lawyers will be happy to review your case to check whether it might fall within a case protected under the Security of Payment Act or other relevant laws. We can further assist in finding a way to enforce your rights. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication. [1] SOPA ss4 and 8. [2] SOPA s5 [3] SOPA s5 [4] SOPA s13 [5] SOPA s14 [6] SOPA s11 [7] SOPA s27 [8] SOPA s12 [9] SOPA s17 [10] SOPA s26A [11] SOPA s26B
Considering buying off-the-plan? Purchasers beware.
H & H Lawyers successfully defends a vendor developer against claims brought by the purchaser of an off-the-plan property in the Supreme Court of NSW. While the benefits of buying an off-the-plan property are often highlighted to a purchaser, the decision in Xu v Lindsay Bennelong Developments Pty Limited & Ors [2020] NSWSC 1692 confirmed the importance of having any terms that are “non-negotiable” for the purchaser to be clearly expressed in writing in the contract for sale of land. Facts In this case, the plaintiff was a purchaser of an off-the-plan property. During the handover inspection of the completed property, the purchaser discovered that there was only one car space attached to her property despite the representation being made prior to entering the contract for sale of land that there would be two car spaces. Subsequently, the purchaser brought a claim against the former vendors of the subject property and the substituted vendor, to whom the contract for sale was novated to, after exchange of contracts. Other relevant facts include: 1. prior to purchasing the property, the agent made representations to the purchaser that there would be two car spaces attached to the property; 2. prior to purchasing the property, the purchaser’s solicitor inquired and the former developer confirmed in writing that the property had two car spaces; 3. the front page of the contract of sale of land did not specify how many car spaces were attached to or formed part of the property; 4. the draft floor plan and draft strata plan of the property which were attached to the contract of sale marked that there are two car spaces allocated to the property; 5. there was no other mention of there being two car spaces attached to the property in the special conditions to the contract or anywhere else in the contract; and 6. it was a special condition to the contract for sale that the purchaser acknowledges and agrees that the vender may make alterations, from time to time, and vary the building floor plan or the draft strata plan, as it sees necessary or desirable. The plaintiff claimed that the defendants breached the fundamental term and purposes, or alternatively, an implied term of the contract, by only transferring one car space with the property instead of two car spaces. The plaintiff also claimed that, in doing so, the defendants engaged in misleading and deceptive conduct or false representation under sections 18 and 30(1)(e) of the Australian Consumer Law (“ACL”) and sought specific performance for the defendants to transfer one more car park under sections 237 and 243 of the ACL. The then Chief Judge in Equity, Ward CJ dismissed the plaintiff’s arguments and held that: 1. the contract was for the sale of a unit with a single tandem car space. However transferring two car spaces was neither a fundamental term nor an essential implied term of the contract; and 2. the representations that the plan would include a space for two cars were clearly made. Nonetheless, such representation does not amount to misleading or deceptive conduct in circumstances where the developer had reasonable grounds to make such representation at the time and the plaintiff suffered no loss by relying on the promise. Key takeaways While this case is not to be generally applied to all circumstances in relation to off-the-plan purchases, a purchaser of an off-the-plan property should be mindful of standard special conditions attached to contracts for sale of off-the-plan properties which are designed to allow a vendor developer to make changes (to a degree) to a draft floor plan or draft strata plan. As in this case, even if the court finds that the draft plan which formed part of the contract was varied, such variation may not constitute a breach of a fundamental or essential term of contract. Thus, a purchaser of an off-the-plan property must scrutinise the terms and conditions before entering into the contract for sale. Further, if the purchaser seeks to rely on any representations made by an agent or vendor prior to entering into the contract, such representation should be expressly and unequivocally included in writing in the contract to make sure the vendor makes good on the promise. The purchaser should also be mindful that the contract would generally provide a limited time to seek rescission. A vendor should also consider the litigation risks associated with the sale of off-the-plan properties. Even if the vendor is successful such as in this case, being involved in court proceedings is costly and time-consuming, and may impact its reputation as a developer as well as open the gate for other purchasers to bring a similar claim against the developer. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
High Court Clarifies Definition of Casual Employee
As one of the most significant decisions by the High Court in 2021, the High Court has determined the meaning of a casual employee in Workpac Pty Ltd v Rossato [2021] HCA 23. Mr Rossato was employed as a production worker by Workpac’s labour-hire company under a series of six contracts, or assignments, to perform work for one of Workpac’s clients. While Mr Rossato was required to work regular and full-time hours according to a fixed pattern of work, Workpac treated Mr Rossato as a casual employee, such that Mr Rossato was not paid the leave or public holiday entitlements under the Fair Work Act 2009 (Cth) (the Act) and the enterprise agreement. The Court confirmed that the question of whether a person is a casual employee is to be determined by considering the express terms of a written employment contract, and not on the basis of any subsequent conduct of either party. To this extent, the court held any such commitment to further work must be contained in an enforceable agreement to be recognised. The High Court held that a casual employee is an employee who has no “firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work” and provides no reciprocal commitment to the employer. In considering the nature of the commitment, the court held that ‘the existence or otherwise of a “firm advanced commitment” must be for enforceable terms’, and should not be held to exist from expectations or understandings borne from the manner in which the parties have performed their agreement. The High Court held that a mere expectation of continuing employment on a regular and systematic basis is not sufficient for the purposes of the Act. Mr Rossato’s employment was expressly on an “assignment by assignment basis”. Mr Rossato was entitled to accept or reject any offer of an assignment, and at the completion of each assignment Workpac was under no obligation to offer further assignments. The High Court also held that it was not the role of the courts to “moderate a perceived unfairness resulting from a disparity in bargaining power between the parties”. In relation to the employment relationship, it should be noted that the High Court held in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 that: 1. while mutual undertakings may not always be express, where there are express terms of the contract between the parties, they must be given effect unless they are contrary to statute; 2. if the mutual undertakings are said to be implied in what has been agreed, they cannot be inconsistent with the express terms of the contract; and 3. if the mutual undertakings are to be inferred from the conduct, then they may take effect as contractual variations. This decision by the High Court in Workpac v Rossato is important for both employers and employees as it reinforces the importance of specifying the terms of the contract in writing, taking into account the key features of the High Court’s decision. It is also important that casual contract terms and employer’s policies are carefully reviewed to ensure that they do not create any unintentional implied mutual obligations or variations inferred from the conduct. It is also worth noting that a new provision of s 66B of the Act has been introduced which requires employers to offer casual employees to become permanent employees if they have been employed for 12 months and have worked regular and systematic patterns in the last six months. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.