Workplace bullying orders

Posted on August 24th, 2015

by Tony Cavanagh

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

The Fair Work Commission (FWC) made formal ‘anti bullying’ orders in a case in August 2015. Very few formal orders have been made since the ‘anti bullying’ provisions were added to the Fair Work Act in 2015.

The bullying conduct (which the employer admitted at the FWC) had occurred between a property manager and other employees in a real estate business. The alleged conduct included swearing and other inappropriate language, physical intimidation, and threats of violence. Before the matter came to the FWC, the employer had investigated the complaints and put in place arrangements to move the manager to a related business. The employer opposed the application for orders on the basis that those arrangements made the workplace safe for the complainants. Read the rest of this entry »

Casuals and long service leave

Posted on August 12th, 2015

by Tony Cavanagh

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

It is generally understood that casual employees – because they are paid a “loading” in their hourly rate of pay – do not have an entitlement to annual leave and are not entitled to sick pay if they are unable to work. Less well understood is the issue of long service leave (‘LSL’) and casual workers.

LSL in Australia is governed by State based legislation. It varies from State to State although the various State Acts are broadly consistent. In some circumstances, casual employees can claim LSL.

In New South Wales the Long Service Leave Act provides that, subject to some exceptions, “every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer”. For the purpose of the Act, ‘service’ is defined as “continuous service, whether on a permanent, casual, part time or any other basis, under one or more contracts of employment”. The Act then provides for a number of situations in which service is “deemed” to be continuous for LSL purposes. Read the rest of this entry »

Solicitors’ professional responsibilities

Posted on August 4th, 2015

by Tony Cavanagh

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

Clients sometimes want their solicitor to attend a meeting that is intended to resolve a dispute. On occasion, clients may want their solicitor to interview two or more potential witnesses concurrently, on the basis that the witnesses can each provide “parts” of a story. Clients often do not understand the risks, both to them and the solicitor, of doing so.

In a building case in 2014, these risks were highlighted. There was dispute between a developer and various subcontractors concerning a subdivision. The director of the development company was also its solicitor. He was also the principal witness on behalf of the company about issues that were in dispute. Proceedings were commenced and two of the subcontractors settled claims against them. The solicitor interviewed those individuals and prepared affidavits by them in support of his company’s claim against the remaining defendants. The case was heard and determined by the Consumer Trader and Tenancy Tribunal. The development company lost and then appealed to the Court of Appeal. The appeal was dismissed. Read the rest of this entry »

Travelling with children after separation: international travel

Posted on July 31st, 2015

by Ashleigh John

Ashleigh John is a Family Law Accredited Specialist at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law.

Separation changes many things, one of which is your travelling checklist:

  • Passport
  • Toothbrush
  • Other parent’s consent to children travelling

When parents have separated there is an expectation that they will obtain the consent of the other parent prior to taking the children out of Australia.

When parents have obtained orders relating to the care of their children this expectation becomes a requirement. Under the Family Law Act, if parenting orders are in place, a parent must obtain the written consent, in the prescribed form, prior to removing a child from Australia. Read the rest of this entry »

Risks with home renovations

Posted on July 27th, 2015

by Tony Cavanagh

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

A landlord engaged a ‘handyman’ to fix a range hood to the wall in a rented home. Three years later the range hood fell, injuring a tenant. The tenant sued the landlord for damages for personal injury. It was not in dispute that the handyman had been negligent with the installation; but it was also clear the handyman was an independent contractor so that the landlord would not be responsible for the handyman’s “installation negligence”. The legal basis for the claim was that the landlord was negligent in failing to make proper enquiry about the qualifications and competence of the handyman and that, because she did not do so, she had a personal liability to the tenant for her injuries. Read the rest of this entry »

Executor’s duties

Posted on July 24th, 2015

By Michael McGrath

Michael McGrath is a Director at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team.

The Supreme Court of NSW recently delivered a judgment removing an executor for failure to carry out his duties to attend to administration of an estate.

The deceased had died several years prior and probate had been granted to two of the deceased’s children. Despite the time which had elapsed since the grant of probate, a property of the deceased in which the defendant executor was living had not been sold and the proceeds distributed to beneficiaries. Read the rest of this entry »

Lawyers are paramount in the administration of justice

Posted on July 17th, 2015

by Mark Sullivan

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

Litigation in Family and Relationships law frequently involves highly emotive issues between family members.  From time to time some clients urge their lawyers to raise arguments or to make claims which may not be able to be substantiated on the available evidence and they then become upset if their lawyer does not comply strictly with their directions.

When such circumstances arise lawyers need to advise their clients that they are officers of the Court and owe a paramount duty to the administration of justice. This paramount duty is reflected in the rules of professional conduct governing the practice of law and the existence of the duty has been summarised in case law as incorporating: Read the rest of this entry »

Can you be liable for misrepresentations when selling your home?

Posted on July 13th, 2015

by Tony Cavanagh

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

Under the Australian Consumer Law (previously the Trade Practices Act) there is a prohibition on misleading and deceptive conduct in trade or commerce. A recent NSW Court of Appeal case looked at whether the vendor of a private home, who had admitted misrepresenting the quality of the home, could be liable for a breach of this statutory provision.

The vendor and his wife had owned a home for several years. They obtained development consent to renovate it. The wife as owner builder, carried out the work over about two years and then advertised it for sale. A real estate agent was engaged to assist with the sale. After the property was sold it became apparent there was significant water penetration (contrary to representations as to the quality of the ‘rebuild’). The representation to the purchasers had been made both by the vendor and by his real estate agent. Read the rest of this entry »

The dangers of inaction

Posted on July 10th, 2015

by Tony Cavanagh

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

The NSW Court of Appeal recently considered a claim by an investor against the Commonwealth Bank, which failed to act on a written request, sent in September 2007, for certain high risk investments to be redeemed. The investor was aware that CBA had not acted on the request. Until mid December 2007 the investments could have been redeemed with little or no loss. After that, they significantly declined in value.

The investor sued CBA for breach of contract. It ultimately admitted breach, but argued the breach had not caused loss; that the investor’s own decision had caused or contributed to any loss and/or that the investor had failed to mitigate loss. Read the rest of this entry »

Appeal successful due to lack of procedural fairness

Posted on July 10th, 2015

by Rose Laffan

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

In the decision of Banks & Banks [2015] the Family Court was asked to consider an application by a father in relation to a child who had been taken to Thailand by the mother, who had then returned to Australia.

When the matter was first before the Court an order was made requiring the mother to cause the child to be brought to Australia by 20 December 2014. The mother did not comply with that order. Read the rest of this entry »

Lease incentive deeds – clawbacks a contractual penalty?

Posted on July 8th, 2015

By Michael McGrath

Michael McGrath is a Director at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team.

It is common practice for particularly large corporate landlords to provide incentives such as fitout contributions or rental rebates to encourage tenants to enter into a lease.

The lease or incentive deed will generally contain a provision requiring the tenant to repay such incentives if the lease is terminated due to the default of the tenant (commonly referred to as a clawback provision).  A recent decision of the Supreme Court of Queensland however has cast doubt on the validity of clawback provisions.    Read the rest of this entry »

When will a liability not be a joint liability?

Posted on July 3rd, 2015

by Rose Laffan

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

In determining the division of property between a couple it is not just the assets that are important.  The recent case of Adair & Milford [2015] addressed the question of whether the husband’s tax liability was a joint liability.

In the first trial the Judge found that the husband had an outstanding tax liability at the time of the trial in 2014 of $419,000. The husband had given evidence that he was making PAYG instalments as well as weekly withholding tax at the time of the trial. The trial judge found that the effect of the husband’s evidence was to mislead the wife and to wrongly inflate the husband’s expenses. The trial Judge then went on to examine the husband’s income and found that he did have the capacity to have been paying the tax liability and concluded that it would not be fair to now attribute the debt as a joint debt. Read the rest of this entry »

Amalgamation of tribunals

Posted on July 2nd, 2015

by Rose Laffan

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

The Tribunals Amalgamation Act 2015, passed by Parliament on 13 May 2015, came into effect on 1 July 2015. From that date the Social Security Appeals Tribunal, along with the Migration Review-Refugee Review Tribunal joined the Administrative Appeals Tribunal.

The amalgamation is expected to generate efficiencies and savings through sharing financial governance, IT and human resources. Read the rest of this entry »

New Family Court and FCC websites

Posted on June 26th, 2015

by Mark Sullivan

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

The community wants more information in an accessible format from businesses and Government departments, and they want it now.   We have come to expect public information being readily available on the internet 24 hours a day, 7 days a week and the busy Family Court and the Federal Circuit Court administrators have recognised this and have recently completed updating their websites.

The new Family Court site can be found at www.familycourt.gov.au and the Federal Circuit Court site remains at  www.federalcircuitcourt.gov.au.  They both went live on 29 May 2015.  Features of the new sites include: Read the rest of this entry »

The dangers of a broad indemnity

Posted on June 22nd, 2015

by Lana Black

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

If you ask a solicitor, he/she will tell you there are significant dangers with granting broad indemnities both in a commercial and personal context. One area of particular concern, when it comes to granting a far reaching indemnity, is where the indemnity includes claims for negligence.

In the case of Samways v Workcover Queensland and Others [2010] QSC 127 the Supreme Court of Queensland considered whether a contractual indemnity included an indemnity against any claim resulting from the indemnified party’s own negligence. Read the rest of this entry »

The importance of properly documenting a settlement

Posted on June 19th, 2015

by Felicity Wardhaugh

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

A recent case in the Supreme Court of New South Wales highlights how important it is to properly document the settlement of claims and to think carefully about the effect of those documents on legal rights.

In Peter John Conridge v Marius Emiele Schaapveld [2015] NSWSC 663 Peter Conridge (the Plaintiff) had lent sums totalling $700,000 to assist his friends establish a frozen custard franchise.  The loans were not documented. When the loans were not repaid he sued all 4 members of the family to recover his money. Read the rest of this entry »

Self managed superannuation funds (SMSF), Defined benefit interest rates for 2015/2016

Posted on June 19th, 2015

by Mark Sullivan

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

The importance of superannuation as a part of a couples’ wealth and financial resources cannot be understated. Australian’s superannuation assets totalled $2.05 trillion at the end of the March 2015 quarter.

It is possible to split the superannuation entitlements of married, de facto and same sex couples 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. There are exclusions for de facto and same sex couples resident in Western Australia. Read the rest of this entry »

Separation in the age of the internet

Posted on June 11th, 2015

by Rose Laffan

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

We undoubtedly live in a digital age. We bank and shop online and we download music, movies and television. Email and text message are prominent forms of communication.

We also socialise online. With so many people sharing so much on sites like Facebook and Twitter, it can be easy to forget that these sites are not private – they are in the public domain. And in increasing number the internet, and in particular Facebook, is implicated in the breakdown of marriages and relationships. Read the rest of this entry »

Can a grandchild contest a will?

Posted on June 5th, 2015

By Robert Lindsay

Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.

Section 57 of the Succession Act lists those individuals who can contest the Will of a deceased person. They are termed “eligible persons” in the Act.

Section 57 (1) (e) provides that a grandchild of the deceased can contest a Will if he or she has been wholly or partly dependent on the deceased person (i.e. their grandparent). The fact that a person is the grandchild of the deceased is not sufficient to be an eligible person. The grandchild must establish that they have been in some way dependant on the deceased. Naturally, it is not difficult to establish that a grandchild has been wholly dependant on his or her grandparent if they live with the grandparent and are reared by the grandparent. However, to determine whether a grandchild has been partly dependant on his or her grandparent, the facts must be taken into consideration. Read the rest of this entry »

Appointing a guardian in your will

Posted on June 4th, 2015

by Felicity Wardhaugh

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

It is a standard worry for a parent about what to do if they die and leave their children without anyone to look after them.  Legislation in NSW allows a parent to appoint a guardian to look after the children in their Will.  This guardian will then have the capacity to act as a parent for the children. If one parent is killed then usually the other parent will continue in the parental role and there will be no need for a different guardian.

However, if you are divorced or separated from a de facto relationship, inserting a provision in your Will that someone other than your ex-spouse or partner act as guardian for the children may not be effective.   Under the Family Law Act (1975) your ex-spouse or partner will be the person who takes over the full time parental role. Read the rest of this entry »