Urgent applications, preservation orders and third party rights

Posted on November 1st, 2017

Many courts in Australia have processes that allow applications to be made before any formal litigation is commenced.  In the Federal Court, one form of ‘pre-litigation’ application that can be made, relates to the preservation of property or information that may be relevant to a later, substantive, claim. 

A recent example was where a software designer suspected a former employee had taken, and was using, its confidential information for the benefit of a direct competitor.  It sought orders for access to the ex-employee’s computers and other electronic devices for the purposes of copying their contents in order to preserve information that may be relevant to a future substantive claim. Read the rest of this entry »

When is a judgment final?

Posted on November 1st, 2017

There are some specific circumstances in which a Court will ‘go behind’ a judgment – even though it remains ‘on the record’ of a court and has not been set aside by appeal. One such circumstance is in bankruptcy proceedings. Although a judgment is ‘prima facie’ proof of a debt, in bankruptcy a judgment is never conclusive proof that a debt exists.

Where, for example, a judgment was entered by default (that is, the debtor did not actively defend the claim) a Bankruptcy Court can, and often does, look behind the judgment to see if there was a genuine debt upon which the judgment was based.  This generally occurs in circumstances where the debtor is seeking to set aside a Bankruptcy Notice or Creditor’s Petition, based on the judgment.  Read the rest of this entry »

Is your website a ‘business record’?

Posted on October 31st, 2017

Most of us understand, at least generally, that for material to be considered by a trial judge in the course of a hearing it must comply with the ‘rules of evidence’.  Both under the common law and under both the NSW and Commonwealth Evidence Acts, one class of material that can generally be given in evidence is ‘business records’.  The broad theory behind this is that businesses will generally maintain accurate records of how they have been conducted (for example as to who their customers are, what revenues they generate, how they carry out production etc) and that their historical records are therefore generally reliable material for the purpose of a court making decisions.

However when the ‘record’ is in the nature of advertising or promotional material, while it is certainly a document created by a business, the courts tend to be much more cautious as to whether these are ‘business records’ in the relevant sense.  The distinction seems to be whether documents are records of a business; or the product of it.  Consequently in recent times the courts have rejected attempts to tender, as business records, both corporate magazines (Australian Competition and Consumer Commission v Air New Zealand Limited (No. 5) [2012] FCA 1479 and extracts from a company’s web page (Clipsal Australia Pty Limited v Clipso Electrical Pty Limited (No. 43) [2017] FCA 60).  Read the rest of this entry »

The sheriff is knocking; but the appeal has not been heard

Posted on October 25th, 2017

In the Australian Court system, unsuccessful litigants generally have some right appeal. It is not well understood that the mere fact of lodging an appeal does not automatically prevent enforcement of the underlying judgment. So, what happens if a judgment is entered against you and you lodge an appeal but in the interim, the successful litigant tries to enforce the debt? 

In NB2 Pty Ltd v PT Limited [2017] NSWCA 257, just such a situation was considered. The case related to the lease of a “fruit and veggie” shop in a Westfield complex. The tenant, NB2, claimed it had been misled into entering a lease (which it could not pay rent competing business also set up in the shopping centre). That argument had failed and judgment had been entered both against NB2 and its director/guarantor for just less than $4,000,000.00. An appeal was lodged but in the interim, the successful litigant issued winding up notices against NB2, and bankruptcy notices against the guarantors.  Read the rest of this entry »

Legal practitioners acting against previous clients

Posted on October 23rd, 2017

In what circumstances is a lawyer permitted to act against a previous client? The Supreme Court of New South Wales recently addressed this matter in Gujarat NRE India Pty Ltd v Wollongong Coal Limited [2017] NSWSC 209

The proceedings were conducted by way of a compressed urgent hearing which was held shortly before the main proceedings. The main proceedings were between Gujarat NRE India Pty Ltd (“NRE“) and Wollongong Coal Limited (“Wollongong Coal“). NRE was suing Wollongong Coal for damages suffered by NRE as a result of a default by Wollongong Coal under a commercial agreement for which NRE had guaranteed the obligations of Wollongong Coal.

The commercial agreement was called the Override Deed and enter into July 2013. The Override Deed required Wollongong Coal to pay $20,411,033.00 to a third party, UIL (Singapore) Pty Ltd. Wollongong Coal defaulted under the Override Deed and NRE was required to pay the balance in full to UIL.  Read the rest of this entry »

Claiming your costs in the fair work commission

Posted on October 13th, 2017

Section 611(1) of the Fair Work Act 2009 (FWA) sets out that the general rule for proceedings in the Fair Work Commission (FWC) is that parties must bear their own costs. Section 611(2) provides an exception to this rule which applies if the FWC is satisfied that a party to the proceedings acted vexatiously or without reasonable cause or that it should have been reasonably apparent the application or response had no reasonable prospects of success, costs can be awarded.

Acting Vexatiously

The FWC has said that an application is vexatious when the predominant motive or purpose of the application is to harass or embarrass the other party to gain collateral advantage.

Without Reasonable Cause

An application is made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed or is manifestly groundless. Whether an application is made without reasonable cause may be tested by asking whether, on the facts apparent to the applicant at the time the application was made, there was no substantial prospects of success. An application is not made without reasonable cause simply because the application did not succeed. If success depends upon the resolution or one or more arguable points of law, the proceedings will not be characterised as being without reasonable cause.  Read the rest of this entry »

Carer’s leave: what are your rights and responsibilities?

Posted on October 13th, 2017

Munro v Wilmar Australia Pty Ltd [2017] FWC 2493 is a recent decision of the Fair Work Commission (FWC)  which provides guidance to employees and employers about what an employee is permitted to do while taking a period of paid carers leave. 

Specifically, the FWC considered whether an employee would be permitted to work in their own business during a period of paid carer’s leave taken in the employee’s primary employment to care for a family member.

The FWC considered that the nature of carer’s leave is different to sick leave where it is the worker who is incapacitated from performing duties.  Read the rest of this entry »

On the 13th day of Christmas: your guide to boxing day trade

Posted on October 13th, 2017

In 2015, the Retail Trading Act 2008 was amended to permit state wide trading on Boxing Day in 2015 and 2016. The 2015 amendments allowed all shops and bank branches to open on Boxing Day on the condition that staff freely elected to work without being coerced, harassed, threatened or intimidated to do so.

The 2015 amendments were required to be reviewed in 2017 to see whether Boxing Day trade should continue beyond 2016. A review of the legislation was conducted earlier this year in consultation with major retailers, their representative organisations, unions and other industry stakeholders to ascertain their experience of Boxing Day trading in 2015 and 2016. Read the rest of this entry »

Working multiple jobs: what are your obligations to your employers

Posted on October 13th, 2017

Munro v Wilmar Australia Pty Ltd [2017] FWC 2493 is a recent decision of the Fair Work Commission, which has held that where an employee fails to provide details of their additional employment to their employer, it may constitute a valid reason for dismissal. 

Specifically, the case involved an employee (Munro), who was conducting his own business alongside his ordinary employment. The employer (Wilmar) was concerned that the amount of hours being worked in total by Munro might be a risk to both his health and safety and to his co-workers.  Read the rest of this entry »

Attorney-General announces review into family law system

Posted on October 10th, 2017

The Attorney-General has commissioned the Australian Law Reform Commission (ALRC) to conduct a review of the Australian family law system; the first comprehensive since the commencement of the Family Law Act in 1975. 

Some of the matters that the Government has asked be reviewed include whether reforms are needed for:

  • Families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness;
  • Collaboration, coordination and integration between the family law system and other Commonwealth, state and territory systems, including family support services and family violence and child protection systems;
  • Improving the clarity and accessibility of the law.

Read the rest of this entry »

When death benefits are available to creditors of a bankrupt

Posted on September 15th, 2017

When it comes to bankruptcy and superannuation, it is well established that a lump sum death benefit payment from a regulated super fund to a bankrupt is not available to creditors. The 2016 Federal Court decision of Trustees of the Property of Morris (Bankrupt) v Morris (Bankrupt) [2016] FCA 846 confirmed this.

In July of this year the Federal Court again looked at the issue of bankruptcy and superannuation death benefits, but from a different perspective.

In the case of Cunningham (Trustee) v Gapes, in the matter of Gapes (Bankrupt) [2017] FCA 787, the question asked of the Court was whether a death benefit which passed through the estate of a deceased, and was ultimately distributed to a bankrupt, was protected from creditors. The short answer – no. Read the rest of this entry »

Self managed superannuation funds, defined benefit interest rates for 2017

Posted on August 21st, 2017

Superannuation assets in aggregate were almost $2.3 trillion at the end of the March 2017 quarter and are now at an all time historical record level.

It is possible to split the superannuation entitlements of married (and de facto couples, except in Western Australia) as part of a property settlement adjustment.   Such splits need to be the subject of a Court order or a Superannuation Agreement entered into strictly in accordance with the Family Law Act.  Read the rest of this entry »

Think before you terminate!

Posted on August 15th, 2017

If you are thinking of terminating a contract that is of any significance, you must obtain legal advice prior to doing so.

Too often we see people take action to terminate a contract as a result of circumstances that they consider entitle them to terminate the contract and suffer significant consequences as a result.

If you terminate a contract or attempt to terminate a contract in circumstances where you are strictly not entitled to, or do so in an inappropriate manner, the other party may be entitled to treat your termination or attempted termination of the contract as a repudiation of the contract. Read the rest of this entry »

A.I. & the legal profession – should we be afraid?

Posted on August 15th, 2017

There has been significant advances in the development of Artificial Intelligence (A.I.) in recent times and a big deal made about A.I.’s impact on peoples’ jobs into the future.

So, should the legal profession be afraid? Are we going to be replaced by A.I. and our jobs become obsolete?

The short answer is no. In my humble opinion, if you subscribe to the above line of questioning, you are asking the wrong questions entirely. Read the rest of this entry »

Departure fees for the departed

Posted on July 27th, 2017

In the case of Estate of Madeline Cozma v Milstern Retirement  Living Pty Ltd t/as Golden Lifestyles [2016] NSWCATCD 56 a retirement village resident died in 2005.  Arrangements were made to sell the deceased’s legal interest in the village (she held a long lease in a unit at the time of her death) and the executors of the deceased’s estate agreed with an agent to market the unit.  Initially, the agent was linked with the village operator.   Read the rest of this entry »

When there is a way, there is a Will

Posted on July 27th, 2017

The Supreme Court has power to order a Will to be made (“statutory wills”).  It is not a power used lightly but can be extremely useful.

In A Ltd v J (No 2) [2017] NSWSC 896 a 14 year old child had sustained injury and received $8 million in compensation.  She suffered from life threatening symptoms and there was a fear she might die at any time.  She clearly lacked capacity to write a Will. The child’s mother made application for a Will to be made for her.  The Will suggested by the mother gave much more of the estate to the mother than the child’s father. Read the rest of this entry »

Taking steps to keep the family together

Posted on July 27th, 2017

After the death of a loved one, family members often quarrel over a deceased’s possessions.  Jewellery is frequently fought over.  Unfortunately, the legal costs of taking such disputes to Court are prohibitive which means that whoever has the jewellery is likely to keep it.

In Tina Marie Carter v Elizabeth Margaret Law [2017] NSWSC 919 a Judge hearing a dispute over jewellery acknowledged this saying: “It is most unfortunate that a dispute involving the sum of $30,000 could not be resolved without incurring costs”.  The Judge’s view was that the costs were likely to equal the amount in dispute.  In that case, a mother died leaving her estate to her children in unequal shares.  She appointed two of her children executors of her estate. Read the rest of this entry »

Five stages of letters of administration

Posted on July 14th, 2017

A grant of letters of administration is a formal order from the Supreme Court which provides authority to the administrator(s) to carry out administration of a deceased estate in accordance with the rules of intestacy. The person appointed as administrator is usually one or more of the primary beneficiaries of the estate. Generally speaking, an application for letters of administration is dealt with by paperwork only and does not require court appearances, however it is not necessarily a simple process.

Usually, an application for letters of administration and the associated administration of an estate involves five steps. These are as follows:-  Read the rest of this entry »

The five stages of probate

Posted on July 14th, 2017

A grant of probate is a formal order from the Supreme Court which provides authority to the executor(s) appointed under a Will to carry out the administration of a deceased estate. Generally speaking, an application for probate is dealt with by paperwork only and does not require court appearances, however it is not necessarily a simple process.

Usually, an application for probate and the associated administration of an estate involves five steps. These are as follows:-

Step One

Making initial enquiries in relation to the assets and liabilities of the estate and publishing a notice of intended application for probate. Read the rest of this entry »

What is estate planning and why should I care?

Posted on July 13th, 2017

Estate planning refers to the planning and arranging, during your lifetime, for the management and disposal of your estate (i.e. assets) while you are living and after your death. It is a complex area of law and, without proper consideration, there can be significant consequences for both you and your family.

Read the rest of this entry »