Passing on passwords, memories and important information

Posted on November 28th, 2016

passing-on-passwords-memories-and-important-informationFelicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in wills and estate planning,
commercial dispute resolution & litigation, and employment law.

What happens to your ‘online’ accounts when you die? It can be distressing to think about “living on” in Facebook, for example, but it can be a source of comfort for your family. Providers of digital services are sensitive about their legal responsibility to their members.  Google, for example, explains that [u]sers have a strong and reasonable expectation of privacy and security when using Google’s products. We believe that the trust placed in us by our users requires us to make sure that their information is safe, even in the event of their death.” Google give users the option to have their account disabled if it has not been used for a certain period of time and to appoint a “trusted” advisor who can gain access to the account or only certain parts of it, such as emails.  Read the rest of this entry »

Vexatious great-grandparents

Posted on November 28th, 2016

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

The Full Court of the Family Court, in the recent case of Mankiewicz and Anor & Swallow, dismissed an appeal by the maternal great-grandparents against a decision to dismiss their application to spend time with their four great-grandchildren and a declaration that they are vexatious litigants.

The trial judge dismissed the great-grandparents application to spend time with their great-grandchildren on the basis that there had not been a material change in circumstances since a summary dismissal of a similar application in 2009, and found, on the Court’s own motion, that the application was an abuse of process as the great-grandparents were acting in concert with their son (the maternal grandfather) and therefore declared the great-grandparents vexatious litigants. Read the rest of this entry »

Do I need to change my Will if my address changes?

Posted on November 17th, 2016

do-i-need-to-change-my-will-if-my-address-changesLana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

A common question which is asked when discussing estate planning is whether a Will needs to be changed/updated as a result of changing addresses. The address of a testator (the person making the Will) is usually included in the Will for identification purposes. Having said this, it is only necessary that the address be current as at the date of making the Will. If the testator moves residence it is not necessary for the Will to be updated where the address is included purely for identification purposes. Read the rest of this entry »

Do I need a Shareholders Agreement?

Posted on November 17th, 2016

do-i-need-a-shareholders-agreementLachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

When setting up a business one of the simplest and most selected structures is the registration of a company.

Whilst business owners are becoming more and more savvy and often no longer require their Solicitor or Accountant to register a company for them, it is concerning the number of business owners that stop the set up process after registration of the company.

One of the most important documents you should have when you operate a company structure is a Shareholders Agreement. Read the rest of this entry »

Were the judges comments biased?

Posted on November 14th, 2016

were-the-judges-comments-biasedRose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and
Matrimonial Law

In the recent case of Bowcott & Welling the mother brought an application for the trial judge to disqualify himself from hearing the remainder of the trial, as the mother alleged there was an apprehension of bias.

The trial judge dismissed the application, but stayed the remainder of the trial while the mother appealed his decision to dismiss the application to the Full Court. Read the rest of this entry »

Copyright vs Privacy

Posted on November 8th, 2016

copyright-vs-privacyKatie Thompson is a Solicitor at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

At the end of last year, the Dallas Buyers Club LLC v ii Net Limited decision was handed down by the Federal Court of Australia. The case has been described as a legal battle between copyright and privacy.

It involved an application for preliminary discovery by the copyright owners of the Dallas Buyers Club film against six ISPs. Dallas Buyers Club LLC (DBC) were trying to force the ISP’s to provide them with the details of 4726 account holders who they believed had illegally downloaded the film so they could seek damages. Read the rest of this entry »

Amendments to Surrogacy Laws

Posted on November 8th, 2016

amendments-to-surrogacy-lawsRose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and
Matrimonial Law

In December 2015 the Federal Parliament passed the Family Law Amendment (Arbitration and Other Measures) Rule 2015.  These amendments to the Family Law Act are, in part, in relation to how the Family Court is to determine surrogacy proceedings, and in particular the evidence that is required to be presented to the Court in such proceedings. Read the rest of this entry »

Security of Payments Act – how do I enforce an adjudication?

Posted on November 8th, 2016

security-of-payments-act-how-do-i-enforce-adjudicationLachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

This article is part of a series of articles that provides an overview of the Security of Payments Act Regime in NSW and explores how to enforce and Adjudication Determination under the Building and Construction Industry Security of Payment Act 1999 NSW (“the Act“).

When an Adjudicator has made a decision in relation to an Adjudication Application the Adjudicator will provide an Adjudication Determination. This is essentially the judgment of the Adjudicator. The Adjudication Determination will include detailed reasoning of the Adjudicator and a final determination of an amount payable to the Applicant.

It is not uncommon for an Adjudicator to require that the Adjudicator’s fees be paid prior to releasing the Adjudication Determination. The Adjudicator will also determine who should be responsible for the Adjudicator’s fees and this usually is paid by the unsuccessful party. Read the rest of this entry »

Contractual Penalties – a change in landscape

Posted on October 26th, 2016

contractual-penalties-a-change-in-landscapeTony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The concept of a “penalty” in Australian law is relatively easy to state, but often difficult to apply in practice. In essence, where a contractual provision (or some collateral arrangement) imposes an obligation for breach of contract, that is disproportionate to the actual cost or loss resulting from the breach, it can be set aside as a “penalty”.

Take a simple example of a contract to purchase a car for $10,000.00. It has a condition that if the purchasers do not complete the purchase on a specified date they must pay $1,000.00 per day, in addition to the price, until settlement occurs. That additional sum is obviously disproportionate to the vendor’s actual cost of delaying settlement. By contrast, a provision that is a genuine pre estimate of the injured party’s costs or losses will not be a “penalty”. Using the ‘sale of a car’ scenario above, if the ‘price’ for a delayed settlement was set by reference to the vendor’s actual holding costs (for example if the vendor’s loan repayment was $10 per day and the ‘price’ of delay was also $10 per day) it can readily be seen that the additional payment is a genuine pre-estimate of loss. Read the rest of this entry »

Selling with a swimming pool – beware

Posted on October 20th, 2016

selling-with-a-swimming-pool-bewareRobert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.

If Contracts exchange for the sale of a property with a swimming pool, after 29 April 2016, the Vendor must attach one of the following prescribed documents to the Contract:

  • A valid Certificate of Compliance issued by either the municipal council, or an accredited certifier; or
  • A relevant Occupation Certificate and evidence that the swimming pool is registered; or
  • A Certificate of Non-Compliance.

If one of the above documents is not attached to the Contract at the time of exchange, then the purchaser has a right to rescind the Contract within 14 days after exchange of Contracts. If the purchaser rescinds, the Contract will be at an end and the deposit paid by the purchaser at the time of exchange of Contracts must be refunded to the purchaser. Read the rest of this entry »

Appealing orders made by consent

Posted on October 20th, 2016

appealing-orders-made-by-consentRose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and
Matrimonial Law

In the case of Charring & Bunt the Appeal Court of the Family Court set out a clear annunciation of the issues involved in attempting to appeal parenting orders that were made by the consent of both parties.

Justice Ryan stated “the fact that an order is made by consent does not make the order any different to an order made after a hearing.” Her Honour went on to say that there was one important qualification however: “the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party’s right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence or the absence of jurisdiction.” Read the rest of this entry »

Security of Payments Act- Adjudication Process

Posted on October 20th, 2016

security-of-payments-act-adjudication-processLachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

This article is part of a series of articles that provides an overview of the Security of  Payments Act Regime in NSW and explores the Adjudication process under the Building and Construction Industry Security of Payment Act 1999 NSW (“the Act“).

As discussed in my previous article, the adjudication process under the Act is an extremely useful tool in assisting contractors and subcontractors to enforce payments in the building and construction industry.

When a party is entitled to make an Adjudication Application, the Act requires that the application must:

  1. be made in writing,
  2. be made to an authorised nominating authority,
  3. identify the Payment Claim and Payment Schedule (if any) to which it relates,
  4. contain relevant submissions and supporting material, and
  5. be accompanied by the relevant application fee.

Read the rest of this entry »

To review or not to review, that is the question

Posted on October 20th, 2016

to-review-or-not-to-reviewLana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

 Often something which is overlooked when it comes to estate planning is review of a person’s Will.  It is our experience that after five or more years, it is important to review a Will to make sure it remains suitable for a person’s current circumstances. Any number of situations may arise which can lead to a need to revise a Will. These include:-

  1. The death of a family member who is a beneficiary or who has been appointed as an executor;
  2. Family law proceedings by a testator (the person making the Will), or a person named in the Will;
  3. New marriage or a de facto relationship entered into since the last Will was made;
  4. The sale of assets which were left as specific gifts in a Will;
  5. The birth of new family members;
  6. The establishment of a self-managed Super Fund or changes in Superannuation arrangements (which are not strictly part of the assets left in a Will, but need to be considered as a part of estate planning); Read the rest of this entry »

Demotions and dismissals – who proves what?

Posted on October 17th, 2016

demotions-and-dismissals-who-proves-whatTony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The Full Bench of the Fair Work Commission recently considered an appeal concerning whether or not an employee had been “demoted”; and whether any “demotion” amounted to a dismissal.

On the particular facts, the Full Bench (agreeing with the Commissioner’s primary decision) said that there had not been a demotion. Rather, the worker’s duties had been reallocated resulting in slightly lower pay and different conditions; but this was permissible under the terms of his employment agreement. Read the rest of this entry »

Powers of Attorney…Super Powers?

Posted on October 10th, 2016

powers-of-attorney-super-powersKatie Thompson is a Solicitor at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

If you are considering appointing a power of attorney or if you have been appointed as someone’s attorney it is important that you understand the rights and responsibilities associated with this.

An attorney may be given general powers to act on a principal’s behalf, allowing the attorney to undertake any activity and enter into any transaction. This means that an attorney may operate bank accounts; manage and pay bills; and lease or sell property on behalf of the principal. Read the rest of this entry »

Child support agreement between Australia and New Zealand

Posted on October 10th, 2016

by Rose Laffan

child-support-agreement-between-australia-and-new-zealandRose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and
Matrimonial Law

In 2000 an agreement was signed between Australia and New Zealand which sought to facilitate the recognition and enforcement of child support decisions between the two countries.

A fundamental premise of the agreement is that while child support assessments, liabilities and orders of one country can be subjected to applications in the other country, any orders made in the second country can only become binding if endorsed by the originating country.

The recent decision by the Full Court of the Family Court in Child Support Registrar & Higgins [2016] confirmed this. Read the rest of this entry »

Security of Payment Act – When to adjudicate?

Posted on October 10th, 2016

security-of-payments-act-when-to-adjudicateLachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

This article is part of a series of articles that provides an overview of the Security of Payments Act Regime in NSW and explores when you can adjudicate under the Building and Construction Industry Security of Payment Act 1999 NSW (“the Act“).

The Act provides the ability for a party to have a dispute adjudicated by an Adjudicator and a Determination made that is capable of registration as a Judgment debt and enforcement by the Courts. The benefit of the adjudication process is that an enforceable decision can be obtained within weeks of a party making an Application for adjudication. This is in keeping with the underlying purpose of the Act designed to ensure that contractors and subcontractors receive payment in a timely manner. Read the rest of this entry »

Love thy neighbour but not their trees?

Posted on September 28th, 2016

by Felicity Wardhaugh

love-thy-neighbour-but-not-their-tree
Felicity Wardhaugh
is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in wills and estate planning,
commercial dispute resolution & litigation, and employment law.

The Land and Environment Court provides assistance to neighbours who are in dispute about trees. It is obviously preferable to talk to neighbours rather than take them to Court.  However, knowing that the Court provides this type of service is helpful.  It might persuade a neighbour to be more reasonable. Section 7 Trees (Disputes Between Neighbours) Act 2006 enables an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to property or injury to a person as a direct consequence of a neighbour’s tree. Read the rest of this entry »

The difficult role of an Independent Children’s Lawyer

Posted on September 28th, 2016

by Rose Laffan

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

Late last year a Family Court judgement made headlines when orders were made that provided for the children’s lawyer to remain appointed until the youngest child turned 18.

An Independent Children’s Lawyer is bound to seek Orders in the children’s best interests. Their appointment is for the length of the Court proceedings.

The children’s lawyer in the matter of Stacey & Woden however was left in a difficult position.

Allegations that the children were at risk of harm from the father had been made by the mother. The Court expert found that there were risk factors present, a Police investigation commenced and Child Protective Services conducted an inquiry. But in the meantime the parents recommenced the children spending unsupervised time with the father. Read the rest of this entry »

Is Creative Commons Your Copyright Solution?

Posted on September 26th, 2016

creative-commonsKatie Thompson is a Solicitor at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Creative Commons is a worldwide initiative that aims to make copyright material more accessible and negotiable in the digital environment. It is designed to provide an alternative model for managing copyright of digital content by allowing people to give permission to others to use their work, so long as it is attributed to them. In some circumstances, Creative Commons can provide an effective and simple way to share and collaborate with digital content and this could potentially help you to develop a social profile, build publicity and enhance the commercialized version of your content.

There are different types of Creative Commons licences and creators can mix-and-match the licencing restrictions that they would like to apply to their work. Read the rest of this entry »