Serving legal documents by email

Posted on March 6th, 2017

Can legal documents be served by email?  If so, when are they received?

Mr Campbell claimed he was owed a debt by Austar Finance.  He issued a Statutory Demand to wind it up.  Austar commenced Court proceedings to set aside the Demand.  Its solicitor ‘served’ the Court documents both by facsimile and by email.  The evidence showed there was a problem with the facsimile transmission and the Court was not satisfied that the documents had been served by fax.  Read the rest of this entry »

Your Guide to Penalty Rates Changes

Posted on March 1st, 2017

The Full Bench of the Fair Work Commission has recently conducted a review of modern awards to determine whether they are achieving their objectives. As part of the review, various employer bodies in the hospitality and retail sectors made applications to vary penalty rate provisions.

The Full Bench decided that Sunday penalty rates in the Hospitality, Fast Food, Retail and Pharmacy Awards do not achieve the objectives of modern awards, as they do not provide a “fair and relevant minimum safety net”.

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Land Tax – A Win For Property Developers

Posted on February 20th, 2017

In a win for property developers, on 10 February 2017 the NSW Court of Appeal upheld a previous decision of the Supreme Court allowing a property developer the benefit of the primary production exemption from land tax (Chief Commissioner of State Revenue v Metricon Qld Pty Ltd).

Metricon had acquired a substantial land holding for approximately $60 million, which had been rezoned ‘Urban Expansion’ allowing for residential development. During the relevant period, Metricon sought development approval and paid approximately $2.2 million in consultant’s fees in preparing plans and reports in support of the development. Metricon also during this period agisted the land for cattle grazing for a rental of approximately $30,000.00 per annum. Read the rest of this entry »

Superannuation Death Benefits

Posted on February 9th, 2017

If a member of a superannuation fund dies (the deceased) there are a number of elements that determine how their superannuation death benefit will be paid.  These include the terms of the fund’s trust deed, applicable trust laws, the Superannuation Industry Supervision Act 1993 and Regulations (SIS) and the Income Tax Assessment Act.

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Is unfair dismissal compensation taxable?

Posted on January 30th, 2017

Is Unfair Dismissal compensation taxable? Mullane and Lindsay SolicitorsThis issue can be of real practical importance, particularly to a dismissed worker, because knowing how much will be received “in the hand” is often an important factor in trying to negotiate settlements in unfair dismissal claims.

The reality is that whether or not a payment is taxable often depends on the nature of the payment. As a general proposition, compensation for wrongful dismissal is regarded as “capital” in nature and is not taxable but that is not universally the case. If a settlement includes components for unpaid wages or payment in lieu of notice (as well as compensation for wrongful dismissal) the whole of the payment can potentially be taxable unless the different component parts are clearly identified. Read the rest of this entry »

Court Returns Child to Ghana

Posted on January 20th, 2017

Court Returns Child to GhanaFrom time to time the Australian courts are required to decide with which parent, and in which country, a child should live until it can be determined which country’s Courts will resolve the matter on a final basis.

In the recent case of Acquaah-Akuffo and Abioye (2016) the Full Court of the Family Court of Australia dismissed a Father’s appeal against orders to return a child to Ghana pending the determination of which country was the appropriate forum for the final hearing.
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What happens when Orders are appealed?

Posted on January 20th, 2017

We often bring you tales of decisions being appealed – either successfully or unsuccessfully – but today we consider what happens to Orders during the appeal process.

In the matter of Lockley & Bardot [2016] the trial Judge made parenting Orders. These Orders involved a substantial change in the arrangements for the child: the child’s residence was to change, from the mother’s to the father’s, and the father was to have sole parental responsibility for the child. Read the rest of this entry »

Residential tenants – do you sub-lease to roommates?

Posted on January 20th, 2017

Are you a tenant in a share house and the only person on the Lease? If the answer to this question is yes, it is likely that you are actually subleasing the property for the purposes of the Residential Tenancies Act 2010. There are a number of important considerations you should be aware of if you are subleasing a residential property, including:


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Self-Managed Superannuation Funds (SMSF) & Enduring Power of Attorneys (EPOA)

Posted on December 21st, 2016

The following example from a draft tax ruling illustrates some of the issues in respect to Self-Managed Superannuation Funds (SMSF’s) and Enduring Power of Attorneys (EPOA).  If this prompts a query from you, give us a call:

EXAMPLE:  Clare is the sole member of a SMSF.  The SMSF trustee is Clear Pty Ltd and Clare is its sole director. The responsibilities of being director of the trustee company of the SMSF have become too difficult and time consuming for Clare. Read the rest of this entry »

Bring Up The Bodies (With Apologies To Hilary Mantel)

Posted on December 19th, 2016

The NSW Supreme Court recently dealt with an unusual dispute, as to who had the right to bury the body of a deceased person.

The plaintiff was the deceased’s sister and the defendant was the deceased’s de facto spouse. Both litigants, and the deceased were of Aboriginal heritage and one of the factors considered by the Court was the importance of cultural, spiritual and religious factors relevant to the place of burial in Aboriginal culture. Read the rest of this entry »

Paying Deposits By Installments – Vendors Beware

Posted on December 19th, 2016

It is increasingly common in contracts for the sale of land, for vendors to accept less than the traditional 10% deposit. Commonly, contracts contain clauses to the effect that, although the deposit remains 10%, a smaller sum is payable on the exchange of contracts and the balance of the 10% remains payable – typically at the time of settlement.

Problems can arise when the contract does not settle due to default by a purchaser. The vendor has not received (and cannot retain) the full 10% deposit. Claims to recover the outstanding part of the deposit are often defended on the basis that ordering payment of the balance of the deposit would be a “penalty” and is therefore impermissible.  Read the rest of this entry »

Rights Between Joint Guarantors

Posted on December 19th, 2016

The NSW Supreme Court recently dealt with a claim for contribution between multiple guarantors.  In simplified form a company “OD” loaned money to an incorporated legal practice.  The loan was guaranteed by three individuals and a further company Trout Hall “Trout”.  The loan was not repaid.  Two of the three individual guarantors became insolvent.  The lender sued the remaining individual guarantor, Mr Robert Clancy, and he cross claimed against Trout. joint guarantors rights

Prior to final hearing Mr Clancy paid an amount to the lender to settle the claim against him.  Ultimately, the Court held that Mr Clancy had paid more than required. Trout argued in its defence that because of the payment by Mr Clancy no amount remained owing from it to the lender.  It seems the lender accepted that argument because the claim between the lender and Trout also resolved. Read the rest of this entry »

Offers Of Compromise & Indemnity Costs

Posted on December 19th, 2016

In most Australian jurisdictions if litigant “A” makes an offer of settlement to litigant “B” which is rejected but, at hearing, litigant “B” does not obtain a better outcome than the offer, then litigant “A” can argue its costs should be paid on an “indemnity” basis.  In practice that generally means that a greater amount is payable to litigant “A” than might otherwise be the case. Such offers can be made either under formal rules of Court, such as the Uniform Civil Procedure Rules, or by what is commonly known as a “Calderbank” letter. Indemnity Costs

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Christmas For Separated Families Part Two: Supporting Parents Without Their Children at Christmas

Posted on December 13th, 2016

Christmas can be a difficult time for newly separated families.  While Part One of this series suggested some tips for providing a child-focused Christmas period, in this article we look at how the parents can be supported by their loved ones and how they can support themselves during the festive period. christmas separated families parent

It is a sad reality for separated families that there will often be one parent, and one extended family, who are not with their children for Christmas.  Where this is the first Christmas since separation this can be particularly hard as the thought of Christmas without your children can be foreign and miserable.

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Christmas For Separated Families Part One: Making It Easier For The Kids

Posted on December 13th, 2016

Christmas can be a difficult time for newly separated families.  This two part series will provide some practical tips for families with separated children, grandchildren, and extended family, to help everyone enjoy the festive season.  

Christmas is a happy time for children, but when children are exposed to arguments or negative comments between their parents, the happiness can disappear very quickly.  Many children feel anxious, sad, angry and torn between their parents, and on special occasions such as Christmas, these feelings are heightened.  Read the rest of this entry »

Life Estates: Who Bears the Costs?

Posted on November 30th, 2016

If you own a property and want to provide a spouse or other person with security of tenure for life, allowing them to live in your property after you die, you may wish to consider creating a life estate when making your will. A life estate creates the right to reside in the property and/or receive income from it. However, a beneficiary of a life estate cannot pass on any rights or interest in the property in their will.

Unless it is stipulated otherwise, where a life estate is created, the occupant of the property is liable for outgoings of a recurrent but not a capital nature. This means that the occupant will be required to meet regular expenditure associated with current use and enjoyment of the property, but not improvements. Read the rest of this entry »

Passing on passwords, memories and important information

Posted on November 28th, 2016

passing-on-passwords-memories-and-important-informationWhat 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

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 »

Who Bears Costs When A Case Is Settled?

Posted on November 21st, 2016

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 had to consider whether costs should be awarded, in circumstances where a plaintiff accepted a settlement offer from a defendant which had been made prior to a hearing; but which was not accepted until after the hearing and when the Court’s judgment was reserved. The defendant’s offer was explicitly said to be “exclusive of costs”.  who bears costs settlement

The defendants later made an application that they be awarded the costs of proceeding, and the plaintiff contended that was a breach of the agreement, that entitled the plaintiff to damages. In this context it must be remembered that an agreement to settle litigation is a form of contract, and that usual contractual remedies are available for any breach of it. The Court rejected the plaintiff’s claim that the words “exclusive of costs” meant that it was an implied term of the contract that each party would bear their own costs.  Rather, consistent with decisions made in relation to formal Offers of Compromise, the phrase meant the settlement agreement did not deal with costs at all. The issue had to be dealt with under the general law rather than under the terms of a settlement contract.   Read the rest of this entry »

The Importance Of Proving That Damage Was ‘Caused’ By Negligence

Posted on November 17th, 2016

Importance Proving Damage Caused NegligenceIt is a basic principle of Australian law that for somebody to recover damages they have to prove that the injury they suffered was ’caused’ by the blameworthy conduct of someone else. The principle does not only apply to claims for personal injuries, but is usefully illustrated by a recent NSW Court of Appeal case involving a personal injury claim.

A 10 year old child suffered personal injury whilst playing a game of “table soccer” at her school, on an ashphalt basketball court. The game involved ‘runners’ attempting to get from one end of the court to the other; through several lines of static defenders. Once a runner was tagged, they became a defender. At the time of the injury, the child was one of about 8 remaining runners. She collided with another runner and fell onto her right wrist and hip. Various allegations were made against the school, including that the child had not been given proper safety instructions; that the supervising teacher had not been keeping a proper lookout; and that the game should not have been played on an ashphalt surface. Read the rest of this entry »