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 Laffanthe-difficult-role-of-an-independent-childrens-lawyer

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 »

Security of Payment Act – What is a valid payment schedule?

Posted on September 26th, 2016

security-of-payments-act-what-is-a-valid-scheduleLachlan 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 notion of a Payment Schedule under the Building and Construction Industry Security of Payment Act 1999 NSW (“the Act“).

A Payment Schedule is a document provided in response to a Payment Claim under the Act that essentially puts forward a respondent’s position in relation to a Payment Claim. A Payment Schedule will usually state that the respondent intends to pay the full amount contained in the Payment Claim or a lesser amount than that contained in the relevant Payment Claim.

It is vitally important that when providing a Payment Schedule under the Act, that the Payment Schedule be a valid Payment Schedule. If a Payment Schedule is not considered to be a valid Payment Schedule, significant rights may arise in favour of the party who has issued a Payment Claim, including, a statutory right to payment for the amount set out in the corresponding Payment Claim. Read the rest of this entry »

Traps with Powers of Attorney

Posted on September 20th, 2016

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

The NSW Supreme Court recently dealt with a case about the transfer of a property under a Power of Attorney (PoA). Briefly, a Mrs Cohen, an elderly and infirm lady, granted a PoA to her son. The son was also the sole beneficiary of the only known Will of his mother.

The son used the PoA to transfer a home unit from her name to his. This particular PoA expressly permitted the son to confer a benefit on himself.

By the time of the hearing Mrs Cohen was in aged care; the cost of her care exceeded her pension; and the NSW Trustee & Guardian had been appointed to manage her financial affairs. It wanted to sell the unit, to release funds to be used for Mrs Cohen’s care. It argued the transfer was improper, despite the PoA allowing the son to benefit himself. Read the rest of this entry »

The women are closing in…

Posted on September 16th, 2016

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

Recent figures released by The Law Society of NSW reveal that female solicitors are closing the gap on their male colleagues.

In 2016, women make up 49.2% of the profession. This is largely due to the increasing number of female Law graduates. The Australian Financial Review has recently published figures showing that 59% of the 1,053 first year lawyers in NSW are female.

Mullane & Lindsay is leading the state-wide average with 6 of our 11 solicitors being female. We are also proud to have a female member on our Board of Directors, in Kristy Nunn. Read the rest of this entry »

Underpaid wages – risks to business advisers

Posted on September 5th, 2016

Underpaid wages - risks to business advisorsTony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

In recent months we have all heard of some high profile businesses that have underpaid wages.  The 7-Eleven franchise has received some publicity in this context, but it is not alone. However it is not only the business in breach of wage payment obligations that is at risk.

Early in 2016 the Fair Work Ombudsman commenced civil proceedings against accountants who were business advisers to a hospitality business which allegedly underpaid workers.  The allegation is that the accountants were ‘knowingly involved’ in underpayments and therefore have a separate liability to that of the business itself.  Based on the FWO press release (the proceedings had not been determined at the time this article was prepared) the liability is said to arise because the accountants, having consulted to the business about a Fair Work audit, knew what the correct minimum wage was; but subsequently processed wages (for foreign workers on working holiday visas) at less than the minimum wage. Read the rest of this entry »

Are you an Enduring Guardian? What are your rights and obligations?

Posted on September 5th, 2016

Are you an Enduring Guardian? What are your rights and obligations?

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

Enduring Guardians may be required to exercise a range of different functions if an appointer becomes totally or partially incapable of making lifestyle decisions.

In general, the functions of an Enduring Guardian are to:

  1. Decide the place in which the appointer is to live;
  2. Decide the type of health care the appointer is to receive, subject to any advance care directives;
  3. Decide personal services the appointer is to receive; and,
  4. Provide consent to medical or dental treatment on behalf of the appointer.

Read the rest of this entry »

Charity begins when the judge decides

Posted on August 26th, 2016

by Felicity Wardhaugh

Charity when judge decidesFelicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in wills and estate planning, commercial dispute resolution & litigation, and employment law.

A recent Supreme Court decision, namely, Estate Polykarpou; Re a charity [2016] NSWSC 409 demonstrates the importance of keeping a will up to date or making substitute provisions in a will.  The testator who made her will was obviously a fan of the Oprah Winfrey show and left half her estate to the Oprah Angel Network (“OAN”).  Read the rest of this entry »

Adverse action and maternity leave

Posted on August 26th, 2016

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

The Federal Circuit Court recently upheld a claim that an employer had taken adverse action against a worker, by making her position redundant whilst she was on a period of parental leave.

The employer restructured its operations whilst the worker was on leave.  Her job was reclassified.  Subsequently the worker made a request for flexible working arrangements in order that she could return to work on a part time basis.  She was informed the request could not be accommodated because her (new) position was being considered for redundancy.  She was in fact informed her position was redundant shortly prior to the date upon which she was to return from parental leave. Read the rest of this entry »

How will bankruptcy affect your superannuation?

Posted on August 26th, 2016

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

A person’s superannuation interests are generally not a type of property that is available to be divided among creditors in the event of bankruptcy. However, there are other legal and financial hurdles that a bankrupt person may face if their superannuation interests are held in a self-managed superannuation fund (SMSF).

According to the Superannuation Industry (Supervision) Act 1993 (SISA) a bankrupt person is disqualified from acting as trustee of any SMSF or as director of the SMSF’s corporate trustee. Therefore, a bankrupt person cannot remain a member of the SMSF because in order to qualify as a SMSF each member of the fund must be either a trustee or director of the SMSF’s corporate trustee. If the SMSF does not meet this requirement, it could result in the income of the fund being taxed at a rate of 45%. Read the rest of this entry »

CTP Overhaul – a fairer system?

Posted on August 19th, 2016

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

On 29 June the NSW Government put forward its plan to overhaul Compulsory Third Party Motor Accident Insurance Schemes with the aim   of making the system fairer and more affordable for road users.

As part of the overhaul, defined benefits will be introduced for low severity injuries. This will cover loss of earning and medical expenses for up to five years and give attendant care help for everyday tasks for up to two years. These benefits will be provided without the need for injured parties to prove who was at fault in an accident. Read the rest of this entry »

Sentencing in family law matters

Posted on August 8th, 2016

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 recent case of Faukland and Shikia the Full Court of the Family Court considered an appeal by Mr Faukland who had been sentenced for contempt of court.

In June 2014 the Court restrained Mr Faukland from disposing a car. On 14 December 2014 Mr Faukland emailed Ms Shikia’s solicitor stating the car had been sold for $90,000 and that he had spent the money on gambling and drugs. The trial Judge then ordered that Mr Faukland was to provide to Ms Shikia contact details for the alleged purchaser or to deliver up possession of the car by 22 December 2014. Read the rest of this entry »

Security of Payments Act – what is a valid payment claim?

Posted on August 8th, 2016

Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

As discussed in my earlier article “Security of Payments Act – How it can Help You!”, using the Building & Construction Industry Security of Payments Act 1999 NSW (‘the SOP Act“) has significant benefits.

However, before you can access the many benefits of the SOP Act you must ensure that you are serving what is known as a Valid Payment Claim. A Valid Payment Claim is essentially an invoice for payment that contains a number of distinguishing characteristics. These are:

  1. It must adequately identify the construction works to which the claim for payment relates,
  2. It must indicated the claimed amount,
  3. It must be issued on or after a Reference Date,
  4. It must only relate to works performed before the relevant Reference Date.
  5. It must be served within the later of any period specified in the Construction Contract or within 12 months of when the construction works were last carried out.

Read the rest of this entry »

The risks of a defamation claim

Posted on August 8th, 2016

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

Some readers might recall that when Lance Armstrong was in his pomp, he protected his reputation by aggressively suing in defamation if somebody suggested he was a drug cheat. For a long time that was a successful strategy for him.  We all know what happened in the end.

The South Australian Supreme Court recently considered a defamation claim by an Anglican priest, who claimed he had been defamed by a newspaper that had suggested (amongst other things) he had been involved in sexual criminal conduct with a minor whilst a priest; that he had been predatory and hypocritical; and that he had abused trust. Most, although not all, of the allegations or ‘imputations’ were established during the trial. The priest therefore failed in his claim and there was a judgment entered in favour of the newspaper. Read the rest of this entry »

Casual or part time?

Posted on August 8th, 2016

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

The classification of employees is a common issue in employment disputes, and there are often problems when record keeping is poor, or where award provisions are not observed.

In January 2016 the Federal Circuit Court heard a dispute between a medical receptionist and a Doctor as to whether she was a casual, or a part time, employee. The receptionist said she was a casual and had been underpaid by reference to the applicable award rate. The Doctor said she was a part timer and had been properly paid under the award.

There was no written contract so the Court looked to the award for guidance. It defined a part time employee, relevantly, as a person who worked “reasonably predictable hours of work”. It also said that a part time employee was entitled to the pro rata equivalent of entitlements available to fulltime workers. Read the rest of this entry »

Can material prepared for family law proceedings be used by the Police?

Posted on July 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

In the recent case of Sahadi and Savva the mother and father were involved in family law proceedings against each other and they were also both accused of serious criminal charges.

The trial judge had granted an application by the Commissioner of Police to release a report prepared in family law proceedings to the Police and others. The mother appealed that decision.  Read the rest of this entry »

Security of Payments Act – How can it help you?

Posted on July 20th, 2016

by Lachlan Page

Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

If your business provides goods or services in the Building & Construction Industry and you are not aware of the Building & Construction Industry Security of Payments Act 1999 NSW (‘the SOP Act“), you could be missing out!

The SOP Act provides an unparalleled regime that can either be very beneficial or extremely brutal depending on your understanding of the SOP Act and how you utilise its provisions. It is designed to increase cash flow within the building and construction industry and, if utilised correctly, can drastically minimise lengthy disputes and increase your ability to recover monies owed. Read the rest of this entry »

Don’t vent your spleen on Facebook

Posted on July 20th, 2016

by Tony Cavanagh

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

A report from the UK illustrates one of the many dangers of Facebook and social media generally. Judge Beverley Lunt sentenced two brothers to suspended prison terms of 2 years following their convictions for selling cannabis.  Within 90 minutes both brothers had posted comments on their respective Facebook pages that were, to say the least, disrespectful to the sentencing Judge.  She was identified by name. Read the rest of this entry »

Court costs – when do they not “follow the event”?

Posted on July 20th, 2016

by Tony Cavanagh

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

Most of us are familiar with the expression “costs follow the event”; that is, in a litigated claim the loser usually is ordered to pay the winner’s costs. In some circumstances that rule can be varied. The NSW Civil and Administrative Tribunal (NCAT) recently dealt with an application to vary, based on two specific grounds.

A dentist was charged with, but acquitted of (under mental health legislation) indecent assaults against a patient. However the same facts resulted in disciplinary proceedings against him by the Health Care Complaints Commission. There was a finding of professional misconduct; and a declaration that, had the dentist not otherwise ceased to be registered, his registration would have been cancelled for a period of 18 months. The HCCC had sought a cancellation for 2 – 3 years. Read the rest of this entry »