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.  There were difficulties proving the terms of the loans.  As a result, the Plaintiff settled against 2 of the family members for $17,000.  The Judge held that the particular words used to settle meant that the Plaintiff could no longer pursue the other borrowers.  Instead of agreeing upon a “covenant not to sue” arrangement, the Plaintiff had agreed to release the family members from the debt.  The Judge held that by releasing these 2 members who were joint promisors, the loan was also released as against the remaining viable borrower/s.  A similar situation arose in reverse in the recent High Court decision of Lavin v Toppi [2015] 316 ALR 366. In that case one borrower settled favourably against a Bank but only received a covenant not to sue from the Bank and not a release.  The borrower was later sued by a co-borrower to further contribute towards repayment.

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay, and practises extensively in  Commercial and other Litigation and Employment Law. If you require any assistance in these areas please contact Felicity Wardhaugh or contact our Newcastle office.

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. If a grandchild simply visits the grandparent and has a holiday then part dependency is unlikely to be established. If however the grandchild goes to stay with his or her grandparent for periods of time out of necessity and stays at the grandparents home and the grandparent cares for the child then it is more likely that partial dependency will be established. This may occur where the grandchild’s parent or parents are unable to care for the grandchild because of sickness or perhaps some other reason.

The fact that a person is the grandchild of the deceased does not mean that the grandchild is an eligible person and can contest the Will. The grandchild must establish to the court that he or she has been wholly or partly dependant on the grandparent who is now deceased in order to be eligible to make a claim in the Estate.

Robert Lindsay is a Director at Mullane & Lindsay, and practises extensively in Commercial Law, Property Law and Wills & Estate Planning. If you require any assistance in this area please contact Robert Lindsay to arrange a consultation or contact our Newcastle office. 

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.

Even if you find it hard to talk to your ex-partner it is a good idea to discuss the situation so that you can reach an agreement about what is to happen if either or both of you die.   It is also particularly important to make sure that your Will is checked on a regular basis to make sure that as the children grow older, the guardianship provisions in the Will are still appropriate because older children may have ideas of their own.

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay, and practises extensively in  Commercial and other Litigation and Employment Law. If you require any assistance in these areas please contact Felicity Wardhaugh or contact our Newcastle office.

Is it a de facto relationship?

Posted on May 29th, 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 concept of ‘living apart together’ has come up in a few cases but the matter of Sinclair and Whittaker [2013] gives a comprehensive examination of whether there is a de facto relationship.

The parties began dating in 2002. In August 2004 the appellant moved some personal belongings in to the respondent’s flat and contributed rent. In December 2005 the parties purchased a unit, in the name of a corporate entity controlled by the appellant, with the appellant providing the deposit and stamp duty. The respondent and the corporate entity jointly borrowed monies from the appellant’s mortgage business. The parties each contributed $15,000 to purchase furniture and accessories for the unit and they shopped for those items together. Read the rest of this entry »

Do you need a testamentary trust?

Posted on May 22nd, 2015

By Robert Lindsay

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

Often the reason a Testamentary Trust is included in a Will is to enable the beneficiaries of the trust to save tax. However, a Testamentary Trust can have other benefits. If a potential beneficiary of a Will suffers from an addiction or is unable to control his or her spending then the Testator should consider paying the share that the beneficiary would otherwise have received into a trust and appointing a responsible third party as trustee of the trust. The trustee will have the power to pay part or all of the income of the trust to the beneficiary at his or her discretion. Naturally, if the trustee considers that the beneficiary is asking for money for unnecessary purposes then the trustee can refuse payments. If however the trustee believes that the money will be used responsibly then payments can be made to the beneficiary. If the trust provides for the payment of capital then at some time in the future, the trustee may use his or her discretion to provide accommodation for the beneficiary.

By introducing a trust and a responsible third party to act as the trustee, the Testator (ie the Will maker) is putting in place the checks and balances to ensure that the beneficiaries’ entitlement under the Will is not wasted and is available for the long term benefit of the beneficiary.

Robert Lindsay is a Director at Mullane & Lindsay, and practises extensively in Commercial Law, Property Law and Wills & Estate Planning. If you require any assistance in this area please contact Robert Lindsay to arrange a consultation or contact our Newcastle office. 

Superannuation and binding death benefit nominations

Posted on May 22nd, 2015

By Robert Lindsay

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

Many individuals or families have their own self managed superannuation funds (SMSF). Superannuation is paid after a member’s death at the discretion of the Trustee of the fund. However, if the Trust Deed creating the superannuation fund provides for a Binding Death Benefit Nomination then a member of a fund can direct the Trustee of the superannuation fund how the superannuation should be paid in the event of the member’s death. The member can remove the discretion of the Trustee. However, it is very important to ensure that the Binding Death Benefit Nomination form is valid. The recent decision of Munro v Munro in the Supreme Court of Queensland is a reminder of the care that is required. In that case Mr Munro, a retired solicitor established a self managed superannuation fund in 2004 with his wife and himself as Trustees. In 2009 he signed what purported to be a Binding Death Benefit Nomination in favour of “the Trustee of Deceased Estate”. Unfortunately, however the Nomination failed. Clause 31.2 (b) of the Trust Deed creating the superannuation fund provided that the Nomination in a Binding Death Benefit Nomination form must be in favour of one or more nominated dependents or the legal personal representative of the member. Read the rest of this entry »

Can a carer contest a will?

Posted on May 15th, 2015

By Robert Lindsay

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

Under Section 57 of the Succession Act, a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death is a person eligible to make a claim under the provisions of the Succession Act 2006. A carer of the deceased can, in some circumstances, be deemed to be an eligible person. To be an eligible person the carer must live under the same roof as the deceased person. Also, the carer must not be providing services for reward. Sometimes there are circumstances where two people reside together and one of them provides services in the nature of care to the other, however the relationship does not constitute a de facto relationship. Read the rest of this entry »

Incorporating policies into employment contracts

Posted on May 8th, 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 banking executive who was made redundant on the merger of two banks, has succeeded in a multi million dollar redundancy claim based on a policy he was not aware of during his employment but which, the Court said, formed part of the employment contract.

Mr James worked for AMRO prior to its merger with Royal Bank of Scotland in about 2008.  AMRO’s redundancy policy allowed 4 weeks pay for each year of service, plus an “ex gratia” payment.  The evidence showed that, in practice, well performing senior employees were almost invariably paid the ex gratia sum even though it was technically discretionary. Read the rest of this entry »

“myGov” and family law

Posted on May 8th, 2015

by Rose Laffan

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

A media release from the Minister of Human Services this week announced the launch of a new smart phone app called “Express Plus Child Support”.

The new app is designed to allow parents to view letters and other communications, keep track of child support payments, update their contact and account details and advise of any important changes in their circumstances. Parents can even make payments using the app.

According to the media release if registered for myGov parents can download the Express Plus Child Support app. Read the rest of this entry »

Security for payment claims – Insolvent contractors beware

Posted on May 1st, 2015

by Tony Cavanagh

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

One object of (State) security for payment legislation is so that contractors can maintain cash flow during projects.  One means of achieving that object is to prevent principals on whom a claim payment is made, from arguing they have a “set off” claim against the contractor.

However the position can be different if the contractor, being a company, becomes insolvent.  In the case of insolvency, the (Commonwealth) Corporations legislation specifically permits set offs against claims by insolvent companies. Read the rest of this entry »

Application for divorce

Posted on April 20th, 2015

by Rose Laffan

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

With the introduction of the Family Law Act in 1975 the principal of no-fault divorce was established in Australia.

This means that when an Application for Divorce is made the Court does not consider why the marriage ended. The only consideration is that the marriage has broken down irretrievably – that there is no reasonable likelihood of the parties reconciling their relationship.

How does the Court determine that the marriage has broken down irretrievably? The criteria used is that the parties have been separated for 12 months and one day.

Read the rest of this entry »

Helping elderly parents manage their money – Some traps

Posted on April 17th, 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 of Fulton v Fulton [2014] NSWSC 619 in the Supreme Court of New South Wales highlights how money can cause bitter family disputes.   The case was heard in the Supreme Court for 6 days: an expensive exercise best avoided.

The dispute arose after the death of a father.  He died leaving four adult sons.  Three of the sons alleged that the fourth son (A) had taken approximately half a million dollars out of the father’s bank account whilst he was still alive.  The father had allowed A access to his bank accounts primarily to pay bills for him.

Read the rest of this entry »

Who can inspect your will?

Posted on April 17th, 2015

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and practises primarily in  Commercial & Property Law.

While you are living no one other than yourself is entitled to inspect your will; of course this does not prevent you from allowing someone to inspect your will while you are living. But what happens after you die; who can inspect your will then?

Prior to 1 March 2007 a deceased person’s will could only be inspected (after the deceased person died) with the consent of the Executor appointed by the will. If Probate of the will was subsequently obtained, the will would become part of the public record at the time, however if Probate was not required, the Executor could potentially keep the terms of the will confidential. The Succession Act has, however, introduced provision for a significant number of people to have the right to receive a copy of a deceased person’s will.

Read the rest of this entry »

Guarantees by wives – Some risks

Posted on April 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.

Particularly since the GFC, the Courts frequently deal with claims by borrowers or guarantors who seek to be relieved of loan or guarantee obligations because they were misled or pressured into signing documents, or because they were taken advantage of. A particular ‘subset’ of these claims involves claims by wives, or female de-facto partners, who have guaranteed debts of their husband or of their husband’s company. Claims in this category are generally made by reference to the 1939 High Court decision of Yerkey v Jones [1].

Read the rest of this entry »

Court resources under strain

Posted on April 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

Recently the Australian Bureau of Statistics released statistics showing that the case load between the Family Court and the Federal Circuit Court (known as the FCC) in 2012/2013 stood at 86% in the FCC and 14% in the Family Court.

While there may be a division of work between the two Courts both deal with incredibly important issues relating to the breakdown of a relationship or marriage, including who is to care for children and how people are to divide their assets. Delays in having the Courts determine such matters has an impact on the lives of the parties, their children and everyone in their extended family and support network.

Read the rest of this entry »

“You can sort it out when I’m gone!”

Posted on April 2nd, 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.

The NSW Supreme Court in Re RB, a protected estate family settlement [2015] NSWSC 70 recently found solutions to the problem of an 80 year old Husband who had become incapable of managing his affairs and who had not written a will.   He was in a nursing home with a prognosis of no more than 6 months to live.  He lacked mental capacity to make a will.  Read the rest of this entry »