Tag: SMSF

  • The Role of a Corporate Trustee in SMSFs: Why It Matters

    The Role of a Corporate Trustee in SMSFs: Why It Matters

    When setting up a Self-Managed Super Fund (SMSF), choosing the right trustee structure is critical. You can opt for individual trustees or a corporate trustee, but the latter often offers unique benefits that make managing your fund easier and more effective.

    What Is a Corporate Trustee?

    A corporate trustee is a company appointed to act as the legal trustee of your SMSF. In this setup, SMSF members become directors of the company, creating a clear separation between the fund’s assets and personal assets.

    Why Choose a Corporate Trustee?

    1. Simplified Administration: Changes to fund membership are easier to manage with a corporate trustee. Adding or removing members does not require updates to asset titles, saving time and costs.
    2. Enhanced Asset Protection: A corporate trustee ensures a clear distinction between SMSF assets and personal assets, reducing the risk of disputes or confusion.
    3. Improved Compliance and Continuity: A company’s perpetual existence ensures the fund’s continuity if a member passes away or becomes incapacitated. Corporate trustees also simplify compliance with SMSF regulations.
    4. Efficient Decision-Making: Directors of the corporate trustee can act quickly and cohesively to make decisions that align with the SMSF’s goals.

    Considerations

    While corporate trustees offer significant advantages, they come with additional costs, including ASIC registration and annual fees. However, these expenses are often outweighed by the long-term benefits, especially for larger or growing funds.

    Opting for a corporate trustee can provide your SMSF with flexibility, protection, and efficiency.

    This structure is particularly beneficial as your fund grows or your circumstances change.

    If you’re setting up an SMSF or considering switching from individual trustees, it’s wise to consult with a financial advisor or SMSF specialist to ensure you make the best choice for your retirement goals. We may be able to assist you by putting you together with someone who can help.

    By understanding the role and benefits of a corporate trustee, you’re taking an important step toward ensuring the success and compliance of your SMSF. It’s about making your fund work smarter, not harder, for your financial future.

    The Pension Phase of Your SMSF: Simplifying the Transition

    As you approach retirement, your Self-Managed Super Fund (SMSF) can transition from the accumulation phase into the pension phase. This shift is a significant milestone and can offer tax benefits and a steady income stream for your retirement years.

    Let’s explore what this transition entails and how it supports your fiscal goals.

    Understanding the Transition to Pension Mode

    When you retire, your SMSF can start paying you a pension, turning your accumulated super savings into a reliable income stream. To make this transition, your SMSF must meet specific conditions of release, such as reaching the preservation age and officially retiring from the workforce.

    Once these conditions are met, your fund can move into pension mode. In this phase, your SMSF’s income is used to pay you a regular pension while enjoying significant tax advantages. For instance, earnings on assets supporting your pension become tax-free, allowing your fund to work more efficiently.

    Minimum Pension Requirements

    The Australian Tax Office (ATO) sets minimum pension withdrawal rates based on your age. Ensuring your SMSF meets these requirements annually is essential to maintain its tax-free status in pension mode. Failing to withdraw the minimum amount could result in your fund losing its tax concessions.

    Strategic Considerations for Your SMSF

    1. Asset Allocation: Ensure your SMSF’s investments align with your income needs. As you retire, a more conservative investment strategy may help protect your capital while providing consistent returns.
    2. Documentation: Update your SMSF’s trust deed and ensure all documentation complies with pension phase requirements. Proper records are vital to meet ATO regulations.
    3. Estate Planning: Review your SMSF’s binding death benefit nominations to ensure your retirement savings are distributed according to your wishes.

    Professional Guidance is Key

    Transitioning your SMSF to pension mode involves important decisions and compliance requirements. A licensed SMSF accountant or advisor can guide you through this process, ensuring your fund operates smoothly and takes full advantage of tax benefits. By planning carefully, you can enjoy a financially secure and stress-free retirement.

    If you’re considering the next steps for your SMSF, feel free to reach out for tailored advice. Together, we can ensure your retirement years are as rewarding as you’ve envisioned.

    Looking for more information on SMSFs? Visit our dedicated SMSF website: https://self-managedsuperfund.com.au/

    Disclaimer
    The information contained in this publication is for general information purposes only, professional advice should be obtained before acting on any information contained herein. Neither the publishers nor the distributors can accept any responsibility for loss occasioned to any person as a result of action taken or refrained from in consequence of the contents of this publication.

  • What Happens To A Loved One’s Superannuation In The Event Of Dementia?

    What Happens To A Loved One’s Superannuation In The Event Of Dementia?

    Superannuation can be confusing at the best of times for the average Australian. However, for those experiencing the effects of mental impairment (such as dementia), or living with those affected by it, access to their superannuation can become a financial issue of great magnitude.

    Dementia is not a specific disease, but rather a term that describes symptoms associated with more than 100 different diseases characterised by the impairment of brain function. The most common type of dementia that is often encountered is Alzheimer’s disease.

    It occurs more frequently in the elder demographic than in the younger population but is indiscriminate in who it affects. However, with an increasing number of people looking at accessing their superannuation, and a rise in the number of Australians impacted by Alzheimer’s disease or other forms of dementia, it’s best to be prepared with the knowledge of what you must do.

    When it comes to your superannuation, if your circumstances mark you as an eligible applicant, you may be able to claim a lump sum from your superannuation fund’s total and permanent disability (TPD) insurance.

    You may be under the assumption that to access the benefits from TPD, you need to have suffered an accident, a workplace injury or a critical terminal illness. However, you can claim for TPD and monthly income protection benefits from your super fund if you have any type of long-term illness that affects your ability to do your job (including young-onset Alzheimer’s or dementia).

    You should get total and permanent disablement from your life insurance provider for a broad range of early-onset Alzheimer’s disease or dementia-related symptoms, including significant permanent impairment, loss of independence, cognitive decline, and other mental health effects.

    Your life insurance provider will consider several factors when deciding whether you’re eligible to make a claim, including:

    • Whether your claim can be supported by a doctor or medical specialist.
    • Whether you’re receiving any treatment for dementia or Alzheimer’s disease, and the frequency of this treatment.
    • Whether your early-onset Alzheimer’s disease can be considered permanent.
    • How your capacity to work has been impaired or will be impaired by your symptoms as your disease progresses.
    • Whether you may be able to take on an adjusted job role or work in a new career.

    If you successfully claim TPD insurance for early-onset Alzheimer’s or dementia, you should be given early access to your super. This money will be paid in a lump sum and will cover your day-to-day costs for the rest of your life. The amount of money you receive will depend on your specific circumstances

    What About If An SMSF Trustee Is Affected By Dementia/ Alzheimer’s?

    In the case of an SMSF, legally, the loss of mental capacity for a trustee of an SMSF means that they can no longer make decisions as a trustee of the fund. The critical period for an SMSF is the time prior to diagnosis when the trustee may be making or not making decisions that would be in the best interest of the members of the fund.

    There are four options that the trustees of this SMSF have:

    • They can retain the SMSF and appoint additional trustees to the fund who share trustee responsibility as they age (which would typically occur with adult children joining the fund).

    • The trustees of the SMSF can appoint an individual to take on trustee responsibility on his behalf under an enduring power of attorney.

    • The trustees of the SMSF can close the SMSF and rollover the fund to a public offer fund, with all ongoing administration and compliance of the fund reverting to a third-party trustee.

    • The SMSF trustee can convert the fund into a Small APRA Fund (SAF). A SAF offers the flexibility of an SMSF, without trustee responsibilities as an independent trustee is appointed to manage the trustee responsibilities on an individual fund basis and on an agreed fee basis.

    It is most important to remember that if you have not appointed someone as your enduring power of attorney and you do lose mental capacity, then it is too late and you will need to apply to the court. It is always important to seek advice about appointing someone as your enduring power of attorney.

  • Reversionary Pension vs Binding Death Benefit Nomination: Which outcome is preferred?

    Reversionary Pension vs Binding Death Benefit Nomination: Which outcome is preferred?

    Reversionary pension vs BDBN: which outcome is preferred?

    Imagine a conflict between pension documentation and a binding death benefit nomination (‘BDBN’) in a self-managed superannuation fund (‘SMSF’) context. For example, the pension documentation states that the pension is reversionary to the surviving spouse; however, the BDBN states that the death benefits are to be paid to the estate. Generally, the question of which document takes priority is decided by considering both documents, as well as the governing rules of the SMSF. However, this article explores whether a BDBN taking priority over pension documentation should be the preferred approach for SMSF members, accountants and financial planners by considering some examples.

    Which approach is more cost-effective?

    Some accountants/advisers take the view that it is more cost-effective to have pension documentation overriding a BDBN. It is true that there are many document suppliers and even accounting software that can generate pension documentation for very little or even no cost. On a surface level, this view may seem quite attractive. However, consider the following example.    

    EXAMPLE 1

    An SMSF member wants a pension that automatically reverts upon death. The existing pension documentation is silent as to whether it automatically reverts.

    Where the SMSF’s governing rules do not provide that the BDBN overrides the pension documentation or if the SMSF’s governing rules provide that the pension documentation overrides the BDBN, a common approach is to fully commute each pension and commence new pensions with documentation that provides that the pension automatically reverts. However, this process requires further steps and consideration of issues. These include:

    • satisfying pension minimums before commuting;
    • determining market values of superannuation interests;
    • Transfer Balance Account reporting;
    • implications from mixing tax free and taxable components if the member also has an accumulation interest in the SMSF and/or multiple pensions; and
    • documenting the commutation and commencement of pensions.

    Further, advising on the commencement of a pension may also raise Australian financial services licence (‘AFSL’) implications for the accountant/adviser. 

    Also, the Australian Taxation Office has expressed a strict view in TR 2013/5 on when a pension is automatically reversionary. Not all document suppliers and accounting software can generate pension documentation that guarantees that a pension is automatically reversionary. A brief resolution after the pension documentation is executed might not be enough to change the ‘reversionary’ status of the pension.

    Accordingly, this common approach involves additional costs.

    In contrast, consider the approach where the SMSF’s governing rules provide that the BDBN overrides the pension documentation. This example reflects the approach taken by DBA Lawyers. 

    EXAMPLE 2

    An SMSF member wants a pension that automatically reverts upon death. The existing pension documentation is silent as to whether it automatically reverts. Assume that the SMSF’s governing rules provide that the BDBN overrides the pension documentation and can also allow for a BDBN to make a pension reversionary ‘mid stream’.

    The template BDBN form (which DBA Lawyers includes with its package for its SMSF governing rules) provides an option to tick. If ticked, it means all the member’s account-based pensions and transition to retirement income streams that they are receiving just before their death are automatically reversionary to the member’s spouse. When completing the BDBN form, the member ticks this box to select this option.

    As the BDBN covers all the member’s pensions, this strategy is both cost-effective and legally-effective.

    Naturally, the wording in the documentation is extremely important to enable a BDBN to override the pension documentation. In particular:

    • The SMSF’s governing rules must expressly provide for reversion and for a BDBN to be able to make a pension reversionary mid-stream.
    • The SMSF’s governing rules must expressly provide that the BDBN overrides the pension documentation.
    • The wording in the BDBN in relation to the ‘automatically reversionary’ option must comply with TR 2013/5, eg, it must fetter the SMSF trustee’s discretion in relation to paying the member’s pensions upon the member’s death.

    As Example 2 demonstrates, taking an approach where the BDBN overrides pension documentation can also be cost-effective. In particular, this approach is the more cost-effective approach where the member has multiple pensions.

    Which approach involves more risk for the accountant/adviser?

    Where the governing rules of the SMSF state that the pension documentation overrides the BDBN, this approach could place the accountant/adviser at risk whenever they assist SMSF members with pension documentation. We illustrate this with two examples.

    EXAMPLE 3

    Assume that the SMSF’s governing rules provide that the pension documentation overrides the BDBN. The SMSF member sees a lawyer for succession planning advice. The lawyer prepares the following documents for the SMSF member:

    • a will;
    • an enduring power of attorney; and
    • a BDBN — the BDBN provides that all of the member’s superannuation death benefits are to be paid to the member’s legal personal representative, eg, to form part of their estate.

    Later, the SMSF member wishes to commence a pension using a large portion of his superannuation interest in the SMSF. The accountant prepares pension commencement documentation for the SMSF member. In particular, the documentation states that the pension is reversionary to the spouse. Assume that the SMSF member did not fully comprehend the consequences of this aspect and executes the documentation.

    The SMSF member dies. The executor of the member’s estate has a duty to maximise the value of the estate and believes that the pension documentation prepared by the accountant has ruined the detailed succession planning undertaken by the SMSF member.

    The accountant is faced with the following questions:

    Is the accountant liable to the estate?

    Has the accountant engaged in legal practice?

    Does the accountant’s professional indemnity insurance policy cover them for this circumstance?

    These are tricky questions that no accountant/adviser would wish to face. 

    In contrast, consider the likely outcome where the SMSF’s governing rules provide that the BDBN overrides the pension documentation.

    EXAMPLE 4

    Assume the same circumstances as Example 3, but with the following variations:

    • the SMSF’s governing rules provide that the BDBN overrides the pension documentation; and
    • the BDBN stated that it covers all the SMSF member’s superannuation interests (including any pensions that they are receiving just before their death).

    When the SMSF member dies, the amounts supporting the pension interest would be paid in accordance with the BDBN. The result would have been consistent with the intention of the SMSF member (and the lawyer).

    Accordingly, these examples demonstrate that taking the approach where the pension documentation overrides the BDBN could expose the accountant/adviser to additional risk.

    Conclusion

    The safest and best-practice approach is to check that the pension documentation and the BDBN are consistent. However, as the examples in this article demonstrate, a BDBN taking priority over pension documentation should be the preferred approach for SMSF members. Accordingly, there is merit in obtaining SMSF documents (including SMSF governing rules) that support this approach, which can act as a safeguard where there is any inconsistency between the pension documentation and BDBN.

    Naturally, for advisers, the Australian financial services licence under the Corporations Act 2001 (Cth) and tax advice obligations under the Tax Agent Services Act 2009 (Cth) need to be appropriately managed to ensure advice is appropriately and legally provided.

    For more information about SMSFs contact our Self Managed Super Specialists on (02) 4926 2300.  Please also visit our SMSF page.

    Article written and provided with permission to use by Joseph Cheung, Lawyer and Bryce Figot, Special Counsel, DBA Lawyers.

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  • Who is your relative for SMSF purposes and why is this relevant?

    Who is your relative for SMSF purposes and why is this relevant?

    It is important to understand who is an individual’s relative for superannuation law purposes as the Superannuation Industry (Supervision) Act 1993 (Cth) (‘SISA’) imposes certain boundaries on an SMSF’s activities in relation to an individual’s relative or related party.  There are two definitions of the term relative in the SISA. Oddly, in some circumstances, an individual’s relative may not be their relative under the SISA! This article considers the two definitions of relative in the SISA and the main circumstances where these definitions are relevant.

    Definition under s 10 of the SISA 

    Broadly, s 10(1) of the SISA states that the term relative of an individual means:

    • a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the individual or of his or her spouse;
    • a spouse of the individual or of any other individual referred to above.

     

    Main circumstances where the definition in s 10 of the SISA is relevant  

    We consider three main circumstances where the definition under s 10 of the SISA is relevant. These are:

    1. Section 65(1) of the SISA contains a general prohibition on the trustee of an SMSF lending money of the SMSF or giving any other financial assistance using the resources of the SMSF to a member of the SMSF or a relative of the member of the SMSF.
    2. Section 66(1) of the SISA contains a general prohibition on the trustee of an SMSF acquiring an asset from a related party of the SMSF.
    3. The in-house asset rules in pt 8 of the SISA broadly defines an in-house asset to be an asset of the fund that is a loan to, or an investment in, a related party of the fund, an investment in a related trust of the fund, or an asset of the fund subject to a lease or lease arrangement between a trustee of the fund and a related party of the fund.

    We illustrate the first circumstance below.

    EXAMPLE

    Thomas is the sole member of the Thomas SMSF. The trustee of the Thomas SMSF is Thomas SMSF Pty Ltd and Thomas is the sole director. Thomas’s brother, Albert, is in financial difficulty and asks Thomas to lend him some money. Thomas knows that the Thomas SMSF has the necessary amount of cash to lend to Thomas.

    However, s 65(1) prohibits the trustee of the Thomas SMSF from lending money or giving any other financial assistance using the resources of the Thomas SMSF to a relative of a member of the Thomas SMSF. None of the exceptions in s 65 apply. According to the definition of relative in s 10 of the SISA, Albert is a relative of Thomas as he is the brother of Thomas. Therefore, the trustee of the Thomas SMSF must not lend money or provide financial assistance using the resources of the Thomas SMSF to Albert.

    If Thomas has enough cash in his personal bank account, he could consider lending money to Albert in his personal capacity.

    As can be seen from the first circumstance, s 65(1) (the no financial assistance rule) makes a direct reference to the term relative. For the second and third circumstance (prohibition on acquiring assets from related parties and in-house asset rules), there is no direct reference to the term relative. However, the term relative is connected because of the definition of related party.

    Section 10(1) of the SISA states that related party, of a superannuation fund, means any of the following:

    (a)  a member of the fund;

    (b)  a standard employer‑sponsor of the fund;

    (c)  a Part 8 associate of an entity referred to in paragraph (a) or (b).

     

    Section 70B of the SISA contains the definition of a pt 8 associate of individuals. It states:

    For the purposes of this Part, each of the following is a Part 8 associate of an individual (the primary entity), whether or not the primary entity is in the capacity of trustee:

    (a)  a relative of the primary entity;

    Tracing through these extracted provisions, a relative (as defined in s 10 of the SISA) of an individual is also a related party of an individual.

    The following example illustrates the relevance of the term relative in the context of working out whether an individual is a related party.

    EXAMPLE

    Thomas is the sole member of the Thomas SMSF. The trustee of the Thomas SMSF is Thomas SMSF Pty Ltd and Thomas is the sole director. Thomas is seeking to use his SMSF to purchase a residential property. Thomas’s aunt, Jennifer, has recently placed her residential property in Sydney on the market. Thomas’s first cousin, Peter, has also recently placed his residential property in Melbourne on the market. Thomas is considering purchasing either Jennifer’s property or Peter’s property.

    Section 66(1) states that the trustee of the Thomas SMSF must not intentionally acquire an asset from a related party of the SMSF. None of the exceptions in s 66 apply. For example, neither property is business real property.

    Applying the definition of relative in s 10 of the SISA, Jennifer is a relative of Thomas as she is the aunt of Thomas. Accordingly, she is also a pt 8 associate of Thomas (as per s 70B of the SISA). She is also a related party of the Thomas SMSF (as per s 10(1) of the SISA). Therefore, the trustee of the Thomas SMSF must not acquire Jennifer’s property.

    The definition of relative in s 10 of the SISA does not include a cousin. Accordingly, Peter is not a pt 8 associate of Thomas and he is not a related party of the Thomas SMSF. Accordingly, the trustee of the Thomas SMSF can likely choose to acquire Peter’s property at market value and on arm’s length terms.

    This example shows that in certain circumstances someone who is an individual’s relative in the usual sense of the word may not be their relative for superannuation law purposes.

    It is interesting to note that the definition in s 10(1) is not exhaustive. Broadly, the definition does not include, in relation to an individual:

    • their great-grandparents, great-aunts, great-uncles or any earlier generation
    • their cousins (such as first cousins and second cousins) and lineal descendants of cousins;
    • the lineal descendants of their nephews;
    • the lineal descendants of their nieces; and
    • former spouses.

     

    Definition under s 17A of the SISA 

    The meaning of the term SMSF is defined in s 17A of the SISA. Broadly, s 17A(1) of the SISA states that the term relative, in relation to an individual means:

    • a parent, child, grandparent, grandchild, sibling, aunt, uncle, great‑aunt, great‑uncle, niece, nephew, first cousin or second cousin of the individual or of his or her spouse or former spouse; or
    • a spouse or former spouse of the individual, or of an individual referred to above.

    Unlike the other definition of ‘relative’, this definition of relative casts a wider net and includes cousins.

    Main circumstances where the definition in s 17A of the SISA is relevant  

    Broadly, the relevance of the term relative is as follows:

    • For funds with more than one member, no member of the fund can be an employee of another member of the fund, unless the members concerned are relatives. This would include cousins
    • Similarly, for single member funds with more than one trustee/director, the member must not be an employee of the non-member trustee/director, unless the member and the non-member trustee/director are relatives.

    The definition in s 17A is different to the definition in s 10. Some key differences include:

    • The definition in s 10 refers to ‘lineal descendant’. However, the definition in s 17A refers to ‘child’ and ‘grandchild’. This suggests that the definition in s 17A does not extend to great-grandchildren or subsequent generations. For example, an SMSF trustee may be prohibited from lending to the SMSF member’s great-grandchild. On a separate analysis, if the individual employed their great-grandchild they could not both be members of the same SMSF.
    • The definition in s 17A includes ‘great-aunt’ and ‘great-uncle’. Accordingly, if a ‘great-aunt’ or ‘great-uncle’ employed the individual, they could both still be members of the same SMSF.
    •  Both definitions refer to ‘spouse’. However, the definition in s 17A also includes ‘former spouse’, meaning the former spouses can share an SMSF even if one employs the other.

     

    Conclusion

    While there is some overlap, the definitions of relative in ss 10 and 17A of the SISA do not totally match. It is important to consider whether there are any relatives involved in certain courses of action such as acquiring an asset or establishing an SMSF. This is a complex area of law and where in doubt, expert advice should be obtained.

     

    For more information please speak with our SMSF Specialists at Leenane Templeton.  Also visit our main SMSF Services page.

    Article written and provided by DBA Lawyers – Joseph Cheung, Lawyer and David Oon, Senior Associate.

     

     

  • CGT relief provisions for SMSFs

    Self-managed super funds can access capital gains tax (CGT) relief to provide temporary relief from certain capital gains arising as a result of trustees complying with the super reforms commencing on 1 July 2017.

    The CGT relief provisions have been made available to preserve the income tax exemption for certain, accrued capital gains which would have been exempt if the underlying CGT assets had been disposed of before a member transfers to comply with the transfer balance cap and before the changed treatment of TRIS’s.

    Transitional CGT relief is available for certain CGT assets held by a complying SMSF at all times between the start of 9 November 2016, to ‘just before’ 1 July 2017. However, the CGT assets eligible for the relief depend on whether the fund uses the segregated or proportionate method for the 2016-17 income year.

    Trustees need to be aware that CGT relief is not automatic – it must be elected by a trustee on an asset-by-asset basis. SMSF trustees will need to review their fund’s circumstances and determine if CGT relief is available and appropriate. If trustees do decide to obtain CGT relief, trustees must advise the ATO in the approved form on, or before, the day they are required to lodge their fund’s 2016-17 income tax return.

    As the decision is irrevocable, careful planning is required. Trustees should contact our office if they are unsure if CGT relief is suitable for their circumstances.

    For more information, contact us at Leenane Tempelton on 02 4926 2300 or email success@leenanetempleton.com.au

    Need SMSF investment planning – Speak with our team

     

  • ATO focus on collectables

    The ATO is working with insurance companies to assess artworks and collectables owned by taxpayers and identify the owners of these kinds of assets.

    There has been an increasing concern by the ATO that assets such as collectables are not being properly accounted for. Since these assets may be subject to capital gains tax (CGT) on disposal, taxpayers should be properly accounting for their assets and aware of any capital gains tax applicable.

    Collectables are items that individuals use or keep mainly for the personal use or enjoyment by them or their associates and include items such as paintings, sculptures, drawings, engravings or photographs, reproductions of these items or property of a similar description or use, jewellery, antiques and coins.

    A collectable also includes an interest in any of the items listed above, a debt that arises from any of those items or an option or right to acquire any of those items.

    Capital gains or losses made from a collectable can be ignored provided the collectable was acquired for $500 or less; the interest in the collectable acquired was for $500 or less before 16 December 1995, or the interest in the collectable it had a market value of $500 or less when acquired.

    Capital losses from collectables can be used only to reduce capital gains (including future capital gains) from collectables. There is no time limit on how long a net capital loss from the disposal of a collectable can be carried forward.

    The ATO’s attention is not limited to capital gains tax and new rules have been introduced in relation to the recording and storage of collectables held by self managed super funds.

    From 1 July 2016 new rules regarding any collectable and/or artwork owned by an SMSF state:

    • collectables cannot be stored at an SMSF trustee’s residence
    • an SMSF trustee or a related party is not permitted to lease or use any of the collectables
    • the collectable must be insured by its own separate policy
    • the storage decisions by the trustees must be documented and minuted
    • if the collectable is to be sold to an SMSF trustee or related party, then a valuation by a qualified independent valuer may be required to determine the market value.

    For more information contact us at Leenane Templeton on 02 4926 2300 or email success@leenanetempleton.com.au