The New Drink Driving Penalties – A Must Know

Posted on January 23rd, 2015

by Lana Black Lana Black is a Solicitor at Mullane & Lindsay and practices primarily in  Commercial & Property Law.

The current penalty provisions

The most common forms of drink driving offences are found in Section 110 of the Road Transport Act and provide it is an offence to drive a motor vehicle when there is a prescribed concentration of alcohol present in the driver’s breath or blood. For the purpose of this alert and we will focus solely on the Section 110 offences.

At present, a person convicted of a drink driving offence faces two classes of penalties. The first is the penalty which is imposed by the Court under the Crimes (Sentencing Procedure) Act (such as fines, bonds and imprisonment) and the second is disqualification of the person’s driver licence. Under the current legislation it is optional for some offenders to have some of the disqualification period suspended for participation in an interlock program. Read the rest of this entry »

SMSF, Family law and new ATO penalties

Posted on December 1st, 2014

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

When a relationship breaks down and the parties have a SMSF together it is often in both parties’ interests for their SMSF to be wound up, or for one party to roll out of the fund into some other complying Fund. A clean break in such circumstances is generally a good thing.

In negotiating property settlements for clients it occasionally came to light that there were breaches of superannuation legislation which placed the parties at risk of penalty. A SMSF that was declared to be non complying caused great loss of wealth to the parties. Such issues with the ATO therefore needed to be remedied as part of any settlement. Read the rest of this entry »

Powers of Attorney – Be careful who you can trust

Posted on December 1st, 2014

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in dispute resolution, litigation and employment law.

The Queensland Court of Appeal recently decided a case (Neilson v Capital Finance Australia Limited & Ors [2014] QCA 139) revolving around the execution of a document under a Power of Attorney. The case demonstrates why it is important to carefully consider who to grant a Power of Attorney to; and to consider whether the Power should be subject to any conditions.

The basic facts of the case were straight forward: Mr Neilson granted a Power of Attorney to Mr Heal. It was unconditional. In 2007 a loan was made to a company that operated, apparently, a café business. The loan was secured by, amongst other things, a guarantee. There were 5 individual guarantors including Mr Heal in his personal capacity and also as the director of another company, Shyfox Pty Limited. Mr Heal also purported to sign a guarantee on behalf of Mr Neilson. Read the rest of this entry »

Making a Will – Don’t forget capital gains tax

Posted on December 1st, 2014

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

Often when parents make a will they aim to treat their children equally, however many people often forget to consider the implications of Capital Gains Tax (CGT) when making their will.

Consider the situation where the person making the will (the testator) owns two properties. One property is the testator’s principal place of residence. The other is an investment property acquired after September 1985. The properties are of similar value and the testator decides to leave a property to each of her two children.

The investment property when sold is subject to CGT. If the beneficiary decides to sell that property then he or she is liable for CGT, which is calculated on the increase in the property’s value between the time of purchase and the time of sale. Read the rest of this entry »

‘Double jeopardy’ and extensions of time in employment dispute

Posted on December 1st, 2014

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in dispute resolution, litigation and employment law.

The Fair Work Commission (‘FWC’) recently dealt with an interesting jurisdictional question as to whether a worker was permitted to bring an application under Section 365 of the Fair Work Act (‘the Act’) – a section which deals with the dismissal of a worker in contravention of a general protection right (as distinct from an ‘unfair dismissal’ as generally understood, under part 3.2 of the Act).

Fundamentally, the issue being considered was whether a separate application that had already been made by the worker to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) prevented the general protection dismissal complaint (GPDC) being dealt with by the Commission. Section 725 of the Act provides that a person who has been dismissed must not make an application or a complaint of a kind referred to in ss726 – 732. Without dealing with each of those sections individually, the apparent intent of s725 is that a person who has been dismissed can bring only one action as a result of the dismissal. Read the rest of this entry »

The anti-bullying provisions – Investigations Part 4

Posted on December 1st, 2014

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in dispute resolution, litigation and employment law.

I have previously looked at thresholds, exclusions, the FWC’s powers and workplace policies in connection with the anti-bullying legislation that was introduced into the Fair Work Act (‘FWA’) on 1 January 2014. This article looks at aspects of the investigation of complaints.

For the reasons given in Part 3 of this series of articles, complaints really should be investigated. There is too much ‘downside risk’ for employers not to do so. Two issues that can arise with investigations are ensuring they are carried out thoroughly, and being aware that there may be a relationship between a bullying allegation and some other form of workplace claim.

  • What are some risks in investigating claims? If an employer has a policy but doesn’t follow it, either the complainant or the alleged perpetrator (or both) might be aggrieved for that reason alone. In a recent Queensland case, a worker who suffered a severe psychological injury due to a workplace bully, in circumstances where the employer did not follow its own policy and there was clear evidence of bullying, was awarded damages of nearly $240,000.00.

Read the rest of this entry »

Relationships Law: Divorces for couples married longer than 20 years increasing

Posted on September 1st, 2014

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

There have been constant changes to the Family Law Act since 1975. Issues relating to parenting, divorce, family counselling and mediation, financial agreements, maintenance and the resolution of property disputes between married spouses, de facto spouses and same sex partners all fall within its jurisdiction. It is influenced by, and has influenced social trends.   The Court’s statistics are monitored and the subject of regular report and comment.

The Australian Institute of Family Studies’ report entitled Working Out Relationships reveals an increase in the number of couples divorcing after long periods of marriage.  The proportion of divorces ending marriages that lasted longer than twenty years has increased from 13% in 1990 to 28% in 2011.  Possible explanations are attributed to changing social norms about remaining in unhappy marriages. There is now far less social stigma about ending a marriage. Women are less reliant on men for their financial stability. Increasing numbers of parents are delaying divorce until all of their children are at least 18 years old. In such scenarios issues of property settlement, spouse support and superannuation splitting become relevant.

Read the rest of this entry »

Superannuation and family law – Part 2

Posted on September 1st, 2014

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

If a superannuation splitting order is made as part of a property settlement between a married or de facto couple whose relationship has broken down, such orders typically allocate a base amount or prescribe a percentage sum to the party who is not a member of the super fund.   The non member spouse will receive an entitlement for the allocated base sum or prescribed percentage and the member spouse’s interest in the fund will then be reduced by a corresponding sum.

The super splitting order needs to be served on the trustee of the member spouse’s superannuation fund with details of the non member spouse’s address and date of birth and the order becomes operative generally within 4 days of service.

Read the rest of this entry »

Superannuation and family law – Part 1

Posted on September 1st, 2014

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

Superannuation is treated as property for the purposes of jurisdiction for both matrimonial and de facto financial causes.   The Family Court and the Federal Circuit Court have jurisdiction under the Family Law Act to determine matters relating to a superannuation interest held by a member of an eligible superannuation plan.

S.79 empowers these courts to alter the interests that parties to proceedings have in relation to property and superannuation. Orders made under s.79 in relation to superannuation must be orders to split payments to a party with a superannuation interest; they do not split the underlying interest.   Trustees of superannuation funds are bound by payment splitting orders if they have been accorded procedural fairness to comment on the proposed orders before they are made.

Read the rest of this entry »

The legal personal representatives of a deceased person entitlement to payment

Posted on September 1st, 2014

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

Q: How should the legal personal representatives of a deceased person deal with entitlement to payment on the deceased’s superannuation upon death?

A: read on…

Our office was recently discussing all things Queensland – and it wasn’t only the State of Origin series. Judgment in a Queensland Supreme Court case of McIntosh v McIntosh [2014] QSC 99 was delivered in mid May and its potential impact on the community was not lost on the trial judge. Justice Atkinson wrote:

This decision deals with an area of the law which has growing practical importance in view of the growth of personal superannuation: how should the legal personal representative of a deceased person deal with the entitlement to payment of the deceased person’s superannuation upon death. As can be seen from this case, the amount invested in superannuation and receivable by way of death benefit may be well in excess of the amount of funds in the estate. Read the rest of this entry »

The vexed question of “casual employees”

Posted on September 1st, 2014

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in dispute resolution, litigation and employment law.

Despite a wealth of case law, disputes about whether or not an individual is a ‘casual’ employee, continue to come before the Fair Work Commission (FWC). A recent example is the case of Cohen – Shapeira[1].

Ms Cohen – Shapeira (‘the teacher’) sought a remedy for unfair dismissal against her former employer (‘the school’). In issue was the nature of the employment and whether there was a ‘dismissal’ at all. The teacher argued she had worked regular and systematic hours over a 10 year period until February 2013. In February 2013 she received an email from the school saying there was a lack of work to offer her, which she took to be a dismissal. The school argued the teacher was employed only on an irregular casual basis and was therefore not able to access an unfair dismissal remedy. The school argued that the teacher was only a relief teacher on a casual register and had no expectation of ongoing work. Read the rest of this entry »

Tax ruling change impacting on family law settlements

Posted on September 1st, 2014

by Rose Laffan

Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law

Recently the Australian Tax Office issued a public ruling that has considerable potential impact on separating couples whose property includes family companies.

The ruling, a reversal of previous private rulings and general practice, states that payments from a private company to a spouse in accordance with a Family Law Courts order are now subject to personal income tax. Previously these payments were tax free.

Separating couples will need to carefully consider whether non-company assets should be divided in a different manner in order to achieve a better tax outcome. Read the rest of this entry »

Insurance proposals – a slip of the pen can be fatal

Posted on September 1st, 2014

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in dispute resolution, litigation and employment law.

The House of Lords recently upheld an insurer’s decision to refuse a claim arising from a building project. The particular policy covered, relevantly, loss suffered by a building owner (in this case, a form of housing cooperative) if the builder became insolvent. Although the particular arrangements concerning the development turned largely on English law relating to social housing, the important point was that the builder was part of a group of companies known as the “TT Group”. The actual construction company was TT (Bedford) Pty Limited but when the insurance proposal was completed, it stated that the builder was a company known as “TT Construction.” Read the rest of this entry »

Ignorance is not bliss when it comes to making a will

Posted on September 1st, 2014

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

I recently read an article which stated since 2005 the number of Will disputes reaching the Supreme Court has risen by almost 60%. While this is a considerable increase, it comes as no surprise to most lawyers. With the aging population, the changing nature of families and relationships and the increasing wealth of individuals, estate planning and succession law are becoming of great importance.

When people talk about “contesting a Will” or “Will disputes” they are usually referring to a Family Provisions Claim (FPC). An FPC is an application to the Supreme Court for an order that provision be made out of a deceased’s estate for a person’s maintenance, education and advancement in life.

Read the rest of this entry »

One to tell the kids/grandkids – ID scanning at pubs and clubs

Posted on September 1st, 2014

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

Pubs and clubs often collect personal information by ID scanning. But what obligations must these venues comply with when collecting, storing and disclosing patrons’ personal information?

The answer in many cases is the Australian Privacy Principles (APPs). The APPs are 13 principles relating to privacy and the collection, use and disclosure of personal information.

The APPs apply to private organisations with an annual turnover of $3million or more, as well as private health service providers and the Commonwealth government sector. For those pubs and clubs which fall within the scope of the APPs, they must comply with these principles or risk fines of up to $1.7million for businesses and $340,000 for individuals.

Read the rest of this entry »

Coles “baked fresh, sold fresh” promotion found misleading

Posted on September 1st, 2014

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

Once again the supermarket giant, Coles, has found itself in the headlines; this time for its bread.

The Australian Competition and Consumer Commission (ACCC), often referred to as the competition watchdog, has recently been successful in its claim against Coles for engaging in misleading conduct.

Late last year the ACCC brought proceedings against Coles. They alleged Coles had engaged in false, misleading or deceptive conduct by supplying bread which was partially baked and frozen off site then transported into stores where the baking was completed (par-baked). This bread was then promoted as being ‘Baked Today, Sold Today’ and ‘Freshly Baked In-Store’.

The ACCC alleged the promotional material was “likely to mislead consumers into thinking that the bread was prepared from scratch in Coles’ in-house bakeries on the day it was offered for sale and that it was entirely baked on the day it was offered for sale”. The ACCC claimed the fact that some breads which were in fact freshly baked in store used the same promotional material meant consumers were unable to differentiate between par-baked and freshly baked bread.

On 18 June the Federal Court found in favour of the ACCC and held the conduct of Coles was misleading. The penalty for the breach will be handed down by the Court at a later date.

Lana Black is a Solicitor at Mullane & Lindsay and practises primarily in residential and commercial property transactions and estate planning and administration.  If you require any assistance in this area please contact Lana Black to arrange a consultation or contact our Newcastle office.

Enduring power of attorney or an enduring guardian…or both?

Posted on July 1st, 2014

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

A power of attorney is a popular legal document.  A power of attorney enables the grantor (the person giving the power of attorney) to appoint one or more adults (the attorney/s) to have the same power as the grantor to make business or financial decisions for the grantor. It is wise to ensure a power of attorney is enduring, meaning it continues in the event the grantor suffers from unsoundness of mind. A power of attorney can commence immediately after being signed or at a future time. It can also include conditions (for example “my attorney is not empowered to sell my house”) or can be unconditional.

Read the rest of this entry »

Who can inspect the will of a deceased?

Posted on July 1st, 2014

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

While you are living no one other than yourself is entitled to inspect your will; of course this does not prevent you from allowing someone to inspect your will while you are living. But what happens after you die, who can inspect your will then?

Under Section 54 of the Succession Act a person who has possession or control of your will after your death must allow anyone or more of the following persons to inspect or be given copies of the will:-

(a) any person named or referred to in the will;

(b) any person named or referred to in an earlier will as a beneficiary;

(c) your surviving spouse, de facto partner (whether of the same or the opposite sex) or child;

(d) your parent or guardian; Read the rest of this entry »

The personal property securities register

Posted on July 1st, 2014

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

What is the PPSR?

The Personal Property Securities Register (PPSR) is a nation-wide online register which records security interests, such as mortgages and charges, in personal property (being any form of property other than land, buildings or fixtures).

How can this apply to me?

While the PPSR is primarily used by businesses, there are a number of common situations everyday people find themselves in which may warrant use of the PPSR, the first one which comes to mind is where there is a loan within the family.

Take the example of a mother who loans her son $20,000.00 to purchase a car. The agreement between the mother and her son is that the loan is interest free and the son is to repay the loan by weekly instalments of $200.00. It is also agreed that if the son fails to make the repayments the mother can take possession of the car and sell it to satisfy the outstanding balance of the loan. This makes the loan a charge on the car. Read the rest of this entry »

More strategic precautions on separation

Posted on July 1st, 2014

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

Whilst not all relationship breakdowns are acrimonious, it is not uncommon for one or both parties to behave badly on separation. This can often be destructive in more ways than seems apparent at the time.

Although divorce follows a no-fault principle, the past conduct of parties can still be an important consideration when determining disputed parenting issues. The following suggestions may seem self evident, but they are frequently breached and clients are reminded that the need to protect children from physical and emotional harm is the highest priority:

  1. Do not assault, molest, harass or abuse the other party. Defence of Apprehended Domestic Violence proceedings is costly, distracting and causes long term breakdowns in communications between parties. It diminishes confidence in parenting capacity and puts the offending parent’s attendance at schools, sporting events and changeovers of residence at risk.

  1. Do not engage in cyber bullying – whether by way of Facebook, Twitter, text or email.  Such publications usually end up attached to an affidavit.

  1. If an incident with the other parent is escalating, do not lose sight of the big picture. Ask yourself: How will my action or reaction reflect on my ability to parent; to be sensitive to the needs of my children and to be child focused? You are parents for life and there may be more to be gained by disengaging in an escalating conflict, especially if it is in the presence or hearing of the children.

  1. Keep a diary.

  1. Look after your physical and emotional health.

  1. Consider and take steps to arrange mediation to resolve parenting disputes if face to face consultation becomes untenable.

Mark Sullivan is a Director at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact Mark Sullivan to arrange a consultation or contact our Newcastle office.