Controversial changes in the air – Restructure of Federal Circuit Court and Family Court

Posted on September 21st, 2018

Controversial changes in the air – Restructure of Federal Circuit Court and Family Court In the week that Australia was changing prime ministers, significant changes were being introduced for consideration in relation to the proposed restructure of the Family Court of Australia (FCA) and the Federal Circuit Court of Australia (FCCA) –  the courts that resolve family and relationships disputes.

On 23 August 2018 the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 were introduced to the House of Representatives. Read the rest of this entry »

Insurance non-disclosure – The Importance of what an Insurer knows

Posted on September 12th, 2018

In 2017, the Supreme Court considered a dispute about whether an insurer had to pay out a claim in circumstances where it alleged its insured had failed to disclose relevant matters in its proposal.

The (very brief) facts were that the insured was a company that operated a petrol station. Its insurance policy did not cover any liability arising from gradual pollution. In June 2013, a sewer near the petrol station exploded and it was ultimately determined the explosion was caused by a sudden petrol leak. The company carried out both repairs and preventative work; and then claimed on its policy. The insurer declined cover. Read the rest of this entry »

Your Guide to Family and Domestic Violence Leave

Posted on August 30th, 2018

Your Guide to Family and Domestic Violence LeaveThe Fair Work Commission (“FWC”) has recently recognised the impact of family and domestic violence (“FDV”) on employees and employers in the work place. The FWC noted in its Four Yearly Review of Modern Awards (“the Review”) that employees who experience FDV often also experience disruption to workplace participation which can in turn cause financial difficulties.

As a result of the Review, changes came into effect on 1 August 2018 which apply to all modern awards and allow employees experiencing FDV to five days unpaid leave per annum (“FDV Leave”). Read the rest of this entry »

Things to tell your Family Law lawyer in the first consultation

Posted on August 29th, 2018

Top 8 things to tell your Family Law lawyer in the first consultationI understand that no one likes to air their dirty laundry to a lawyer they have just met. But, in the context of Family Law there are three important things to bear in mind:

  • You cannot change your past. It is important to be honest about the past if it is relevant to the outcome;
  • If I am going to provide you with sound legal advice, it is vitally important that I know about all the skeletons hidden away in your closet. This is especially true in Family Law, when every seemingly forgotten fact from your past could be important in determining the matter – or in a bad case, could be used by the other side to build a case against you; and
  • I take the duty of confidentiality that I owe you very seriously. Without your express consent I cannot reveal the information you to tell me.

Read the rest of this entry »

Charity does not always begin at home

Posted on August 24th, 2018

Charity does not always begin at homeLever v Attorney General of NSW [2018] NSWSC 838

A Will-maker left a gift of approximately $4.5m to her nephew and his wife to create a trust to “benefit women and children in the United Kingdom“.  The Will-maker was in the process of divorce at the time the Will was made and did not want her estate to go to her ex-husband or his children.  A Trust known as the “Ellie Trust” was established in an effort to comply with the Will and the purpose of the trust was to “preserve and protect the mental and physical health of women and children who have suffered domestic violence through the provision of refuges and safe accommodation in Liverpool”. Read the rest of this entry »

Can my step child contest my Will?

Posted on August 10th, 2018

 

Can my step child contest my will?When people talk about contesting a will, they are talking about family provision claims. Under the Succession Act, only certain classes of people are eligible to make a family provision claim. These are:

  1. a spouse;
  2. a de facto spouse;
  3. a child;
  4. a former spouse;
  5. a person who was
    1. wholly or partially dependant on the deceased at any particular time; and
    2. either a grandchild or a member of the same household as the deceased at any particular time; or
  6. a person in a close personal relationship with the deceased.

Read the rest of this entry »

When Customary Law meets Succession Law

Posted on July 31st, 2018

When Customary Law meets Succession LawIn Re Estate Jerrard, deceased [2018] NSWSC 781 an indigenous young man died in a motor accident without a Will and with no spouse or children.  Superannuation death benefits were payable into his estate. His parents were his closest relatives.  The deceased had little contact with his father and lived with his mother.  His mother made a claim for the whole of his estate to be distributed to her.  She relied on Part 4.4 Succession Act 2006 (Part 4.4.) which provides that a person may apply to the Court for a distribution order under “the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous deceased belonged” (customary law). She argued that according to customary law she should receive the entire estate. Read the rest of this entry »

When is a Will a Will?

Posted on July 27th, 2018

When is a will a will?Section 8 of the Succession Act provides that a document (or part of a document) that “purports to state the testamentary intentions of a deceased person and has not been executed in accordance with the provisions of the Succession Act 2006 can be deemed to be the deceased’s Will if the Court is satisfied that the person intended it to form his or her Will”.

On 9 October 2017, the Supreme Court of Queensland in Nichol v Nichol and Anor determined that a text message on the mobile phone of the deceased was deemed to be his Will. The unsent text message was made (apparently) sometime prior to 11 October 2016. The mobile phone with the message was found with the deceased when he was discovered on 10 October 2016. Tragically, the deceased took his own life. The message read as follows: Read the rest of this entry »

Making a Will – beware the assets test

Posted on July 16th, 2018

Making a Will - beware the assets testA couple who receive the aged pension and own their own home can have combined assets of up to $380,500.00 without their pensions being affected. If they have combined assets greater than that amount their pension may be reduced. A single person receiving the aged pension (and owning his or her own home) must have assets of less than $253,750.00 otherwise the pension can be affected.

As at 20 March 2018, the maximum basic rate of the aged pension for a couple was $1245.60 per fortnight (combined). For a single person the maximum basic rate of aged pension was $826.20 per fortnight. When a couple receiving the aged pension are considering their Wills it is wise for them to calculate what assets will be held by the survivor when the first of them dies. If the couple has combined assets in excess of $253,750.00 (disregarding their home) then the surviving spouse’s pension may be reduced depending upon the assets which pass to him or her. The survivor will receive the pension for a single person and the single person pension will be further reduced based upon how much he or she has above $253,750.00 (excluding the home). Read the rest of this entry »

The three questions kids are thinking about separation and divorce

Posted on July 9th, 2018

The three questions kids are thinking about separation and divorceRecently the Australian Institute of Family Studies released their Report “Children and young people in separated families: Family Law system experiences and needs”. The report involved interviews with 61 children aged between 10 and 17 years from 47 families in Victoria, New South Wales, Queensland and South Australia.

In summary, the recommendation from the Report is to “give children a bigger voice more of the time”.

From the comments the children made in the interviews, and from what my clients have told me over the years, children involved in Family Law disputes tend to ask the same kinds of tough, wrenching questions about separation and divorce. Read the rest of this entry »

If the husband was the puppet master, who was the puppet?

Posted on July 3rd, 2018

If the husband was the puppet master, who was the puppet?In a recent Family Law Full Court case, it was not in dispute that the husband exercised control over his 99 year old father’s unit trust (UT) including directing agents on behalf of the UT, using the UT’s assets as security for his own personal borrowings; intermingling his funds with the funds of UT and, since 2002, treating the UT as if it was his own.   It was the expectation of his estranged wife therefore that the assets of the UT should be included in the assets to be adjusted between the parties on settlement because the father’s UT was simply a puppet for the husband.

The Full Court and the trial Judge however disagreed and found, that whilst the father remained the owner of the UT, he was not a puppet of his son.  The husband had some “lawful right to benefit from the assets of the trust” and controlled some of the dealings of the UT, but they were not satisfied that the UT was a device used by him for his sole benefit. Read the rest of this entry »

Can lease obligations operate ‘prior’ to the commencement date of the Lease?

Posted on June 25th, 2018

Can lease obligations operate 'prior' to the commencement date of the Lease?Will a Court enforce provisions of a lease against a party in respect of a period of time prior to the commencement date of the lease? This was one of the questions raised in Bonafair Holdings Pty Ltd v Hungry Jacks Pty Ltd.

His Honour, Sackville AJA, concluded that the language used by the parties in the relevant clauses will be determinative on the issue. “It is of course possible for a lease to contain provisions attaching consequences to events or conduct pre-dating commencement of the lease… However, in the absence of any language evincing a contrary intention, provisions in a lease for a term of years ordinarily create rights and obligations between the lessor and the lessee as and from the date the term of the lease commences“. Read the rest of this entry »

Directors’ liability for legal costs

Posted on June 25th, 2018

A cautionary tale for directors who might think they can hide behind a “corporate veil” and avoid personal exposure.  Parties to a complicated dispute settled the dispute and entered into consent orders.   Subsequently, an application was made against one plaintiff company to enforce the consent orders.  The company had failed to execute all necessary documents.  When the plaintiff company continued to fail to comply, the Supreme Court (Tasmania) made an order under section 169 Supreme Court Civil Procedure Act 1932 (Tas) empowering the Registrar of the Court to execute the documents instead.  The Defendant then sought a costs order for the cost of enforcing the orders.  Read the rest of this entry »

Real improvement in real estate transactions using technology

Posted on June 18th, 2018

Real improvement in real estate transactions using technologyHave you noticed that a feature of electronic technology is the ability to collaborate?  A person in Adelaide and a person in Tea Gardens can now share information in a mouse click.  A new electronic system of conveyancing allows government agencies, financial lenders and lawyers to connect with each other online and to provide up to date information to each other.

The electronic platform where the collaboration takes place is known as the Property Exchange Australia Limited or PEXA.  Mullane & Lindsay now use it.  For clients, PEXA will improve the processing time for changing title to property and the release of sale funds.  If you are selling a property, cleared funds arrive in your account on the date of completion of the sale. Read the rest of this entry »

Bankruptcy and the “slip rule”

Posted on June 13th, 2018

Bankruptcy and the "slip rule"Most of us understand that once a judgment in a Court case is entered, it is final (except for any appeal rights). One minor exception, commonly known as the ‘slip rule’, is where an obvious error was made in a judgment or order. In the case of such an error, it can be corrected under the slip rule without the necessity for an appeal.

Slip rule applications are relatively rare. Even rarer was the situation that arose in 2016 when the Court was asked to make a slip rule correction to a judgment affecting a person who had become bankrupt. Under the Bankruptcy Act when a person becomes bankrupt, a creditor cannot “take any fresh step” in Court proceedings, except by leave. The issue the Supreme Court had to determine, was whether making a correction under the slip rule amounted to a “fresh step”. If so, the correction was not possible except by leave of the Federal Court (as opposed to the Supreme Court, where the proceedings had been instituted). Read the rest of this entry »

Lower than expected service leads to compensation

Posted on June 13th, 2018

Lower than expected service leads to compensationThe Applicants contracted the Respondents to arrange their wedding reception at a venue overlooking Sydney Harbour. At 4 PM on the big day a pipe burst causing a flood.

The Respondents did not own the venue and did not cause the leak. The Respondents notified the building Manager as soon as they became aware of the leak.  The reception was briefly delayed, tablecloths were placed on the wet floor, the room reconfigured to avoid the water leak, and buckets collected dripping water.

The tribunal was satisfied the respondent had not breached its guarantee to provide the services with “due care and skill” because it took measures to alleviate the problem. It was however satisfied that the water leak and slight delay made the reception not fit for purpose and the guarantee was unaffected by the fact the respondent did not cause the leak. Read the rest of this entry »

Costs – who pays when each party has some success

Posted on April 4th, 2018

The Supreme Court recently issued a cost decision that grapples with an issue that occasionally arises once litigation is finalised.  That is, if there are several issues in dispute in the proceeding, and both parties have some measure of success on various issues, who should pay costs?

The usual rule is that ‘costs follow the event’.  That is, the successful litigant usually gets an order that the unsuccessful litigant should pay their costs.  Costs are not intended to be a penalty but rather to recompense the successful litigant for the cost of vindicating their rights.  Where one party is wholly successful, they would ordinarily expect a costs order in their favour.

It is less easy to apply that ‘rule’ where each party has some, but not total, success. Read the rest of this entry »

Jones v Dunkel – the problem of not calling a witness at a hearing

Posted on April 4th, 2018

Most lawyers know the case Jones v Dunkel: in general terms, it is authority for the proposition that if a party does not call a witness who can apparently give evidence about a matter in dispute, the failure to call them allows the Court infer that the evidence of that person would not assist the party. This is one of the reasons why witnesses are often required to give evidence, even though they may not be of particular assistance to a litigant – to avoid an unfavourable inference if they are not called.

A recent Supreme Court decision, dealing with an insurance policy dispute, led to a discussion of the so called “Jones v Dunkel inference”.  The plaintiff made a decision not to call a number of witnesses at trial; and the defendant asked the Court to make a Jones v Dunkel inference. In dealing with that argument, the Court summarised the principles or considerations that are at play in deciding whether such an inference should be drawn. In particular, the Court suggested that it is the person asking for the inference to be drawn (that is, the opponent of the litigant who did not call the witness) who must prove two fundamental things namely:- Read the rest of this entry »

Liability in the absence of a therapeutic relationship

Posted on April 4th, 2018

The NSW Court of Appeal recently found a medical treatment provider was liable for personal injury, even though there was never a therapeutic relationship with the person who was injured.

Briefly, a Mr Mason suffered from psychological illness for which he was taking medication. He was remanded in custody on criminal charges, to Parklea Correctional Centre. It was privately operated by GEO Group under contract with the State Government. The contract required GEO to provide psychological and counselling services to inmates.

When Mr Mason was processed at Parklea, he told employees of GEO about his conditions and medications, but he was not prescribed any replacement drugs nor referred for counselling or other treatment. Days later, he jumped from a high level landing and suffered personal injury. He then sued GEO for those personal injuries. That case settled, but a related claim between GEO and its insurer continued because the insurer contended that its policy did not provide cover unless GEO had actually provided (medical) services. Read the rest of this entry »

Rental car agreements & drink driving

Posted on April 3rd, 2018

It is a common provision in car rental agreements that if the car is damaged as a result of the driver breaching a law in force where the accident occurs, insurance coverage will not be available. The clauses are often drafted to cover a wide range of breaches of the law but that would almost always include an accident that occurs when the driver was “over the limit” for blood alcohol.

One of the features of the Insurance Contracts Act, which governs a number of classes of insurance policies including car rental agreements, is that if there is a “technical” breach of the policy, but that particular breach did not cause the loss or increase the risk of loss, the insurer may not be able to refuse cover. However, that principle only applies where a policy of insurance exists – as Gardam’s case shows, it has no application to a document (such as a rental agreement) that is not an insurance contract. Read the rest of this entry »