Changes to unfair dismissal threshold

Posted on July 4th, 2017

The “high income threshold” is the figure above which an employee is not eligible to bring a claim for unfair dismissal relief, unless their employment is covered by an award or enterprise agreement. Each year, the high income threshold for unfair dismissal claims is indexed upwards.

The components of remuneration that count towards to high income threshold are wages, money paid on a worker’s behalf (for example salary sacrifice towards non-concessional superannuation contributions; or to vehicle leases and the like) and the agreed value of non-monetary benefits (for example the provision of electronic devices).  Read the rest of this entry »

Using preliminary discovery for family provision claims

Posted on June 28th, 2017

Disputes between siblings after the death of a parent are common.  A typical basis for a dispute is an allegation that one child has helped themselves to their parent’s money in the parent’s lifetime.

On the death of a parent, accessing documentation to take the other sibling to task is difficult.   Often the sibling has no legal authority to ask for information .  In Viljoen v Hayes [2017] NSWSC 801 a sister requested copies of bank statements belonging to her deceased father for the purpose of finding out what had happened to the proceeds of sale of her father’s property in his lifetime.  The brother declined to produce copies.  Read the rest of this entry »

Can I have a copy of the Will?

Posted on June 28th, 2017

When a person makes a Will he or she is not obliged to show the Will to anyone. Some people do, some people don’t. However, after the Will maker has died, certain people are entitled to a copy of the Will as provided for in Section 54 of the Succession Act 2006. Those people who are entitled to a copy are:- 

 

 

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Ellis’s Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20 – Part 2

Posted on June 28th, 2017

The NSW Court of Appeal case, Ellis’s Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20, is a particularly interesting case as it addresses two (2) separate but interesting issues, being:

  1. What is the correct method of assessment of damages under a Lease for a breach of painting and repairing covenants? and
  2. When a party may make an application to appeal from a Judgment of the District Court for amounts under $100,000.00.

The facts of the case together with the measure of damages have been discussed in Part 1 of this series of articles.  Read the rest of this entry »

Ellis’s Townhouse Pty Ltd v Botan Pty Ltd [2017] NSWCA 20 – Part 1

Posted on June 28th, 2017

The NSW Court of Appeal case, Ellis’s Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20, is a particularly interesting case as it addresses two (2) separate but interesting issues, being:

  1. What is the correct method of assessment of damages under a Lease for a breach of painting and repairing covenants? and
  2. When a party may make an application to appeal from a Judgment of the District Court for amounts under $100,000.00.

We will address these two issues in two (2) parts over two (2) separate articles. Read the rest of this entry »

Business succession plans and fine print

Posted on June 28th, 2017

A scenario from a real case demonstrates how much it pays to ensure that a well thought out business succession plan is in place. Three veterinary surgeons operated a business in partnership.  One of the surgeons was diagnosed with cancer.  Steps were taken to dissolve the partnership and for his share of the business to be sold to the remaining partners. At the suggestion of a financial planner, the surgeons had all agreed to take out insurance with MLC “Live Cover Super”.

The cover was for 2 different types of event: death or total and permanent disability. A deed of dissolution of the partnership was drafted which provided that on receipt of the insurance proceeds, two thirds of the proceeds would be paid to the surviving partners to help them buy out the departing partner. Read the rest of this entry »

Legal reform – elder abuse – engaging with aging

Posted on June 19th, 2017

The ARLC Commission has launched its report into Elder Abuse and its key recommendations can be found at http://www.alrc.gov.au/news-media/elder-abuse-national-legal-responses. Some really sensible suggestions have emerged from the report which are worthy of implementation.

For example, the idea of a national register for enduring powers of attorney.  In our experience it is not unknown for different members of a family to take their elderly relative “lawyer shopping” resulting in multiple documents which conflict with each other.  The “front line” for the use of powers of attorney is often a financial institution.  Ensuring staff at Banks receive training in the legal process for accepting a power of attorney is welcome.  Read the rest of this entry »

Marriage, divorce and your Will

Posted on May 23rd, 2017

It is not uncommon for an individual to overlook reviewing his or her Will at the time of marriage, divorce or separation. Section 12(1) of the Succession Act provides that a Will is revoked by the marriage of the Will maker. However, if a Will is made in contemplation of marriage then the subsequent marriage of the Will maker does not revoke the Will.  

However, if an individual makes a Will in favour of his or her spouse and then marries that person, the Succession Act provides that the disposition to the person to whom the Will maker is married at the time of his or her death will not fail (i.e. the surviving spouse can receive his or her share under the terms of the Will).  Read the rest of this entry »

Is a company in liquidation truly dead?

Posted on May 19th, 2017

When a company is placed into liquidation, is it really final? The case of SCW Pty Ltd (in liquidation) [2017] NSWSC 449 recently outlined the circumstances where the liquidation of a company may be terminated by the Court and the company reinstated. 

Prior to its liquidation, SCW Pty Ltd carried on a business primarily by way of investment in four properties and the ownership of two boats. The shareholding in the company was equally held by a husband and wife and their related corporate entities. The husband and wife were each directors of the company. The company was wound up by order of the Court on 11 April 2001 on just and equitable grounds due to ‘irreconcilable differences’ and deadlock between the directors.  Read the rest of this entry »

Successful company with storm clouds on the horizon

Posted on May 19th, 2017

Company planning is imperative. I recently saw a client of mine who was a director and shareholder in a very successful Hunter Valley company. Let’s call them Company Y. 

Many years ago, my client set up Company Y with his good friend and business partner. They were/are both directors and shareholders in Company Y. When Company Y was established a generic Company Constitution was produced on registration. The Company Constitution was not appropriate for the purposes of Company Y.

 

Read the rest of this entry »

Sale of business vs company sale

Posted on May 19th, 2017

In this article we will look at the differences between the sale of a business and the sale of a company including a few of the pros and cons for each. 

Firstly, there is a significant difference between the sale of a business and the sale of a company. A business is an enterprise usually engaged in to generate revenue (i.e. the business of selling food or the business of providing accounting services).  It is possible for a business to be operated/owned by a number of different entities (such as individuals, companies or trusts). When a business is sold, it is sold from one entity (the owner) to another entity (the purchaser). Usually the sale of the business will consist of the transfer of assets, goodwill, intellectual property, licences, business name, plant and equipment.  Read the rest of this entry »

2017 Budget announcements that affect the family law system

Posted on May 11th, 2017

The Federal Government has made a number of announcements that will affect the family law system in the 2017 budget. Regrettably, these do not include the substantial funding boost that the system needs to remedy the long delays being experienced by litigants in the Courts.

The announcements include:

  • $10.7 million allocation to the Federal Circuit Court of Australia, the Family Court of Australia and the Family Court of Western Australia, to engage more family consultants to help the courts deal with cases involving vulnerable families. This is a thumbs up.
  • $12.7 million to establish parenting management hearings-  a forum to resolve family law disputes between self-represented litigants and which are designed to be a fast, informal, non-adversarial dispute resolution mechanism. The devil may be in the detail, and more information will be needed before further comment. It is unlikely to impact on those families using the Newcastle Registry

Read the rest of this entry »

Three things to consider when leaving a gift of real estate in your Will

Posted on May 11th, 2017

The idea of leaving a specific gift of real estate in a Will appeals to some people. If a specific gift of real estate is going to be given, the following three things need to be properly considered:

  • ademption – if a specific gift of real estate is left in a Will but it has been sold before death, the legal principle of ademption provides the gift fails. Even if the sale proceeds were used to buy a new house, the gift will fail unless the Will is drafted to specifically contemplate this.
  • mortgages – did you know that under Section 145 of the Conveyancing Act, a mortgage over a property which is specifically gifted under a Will attaches to the gift (unless the Will expressly says otherwise). This means the beneficiary who is gifted the property will ultimately be responsible for repayment of the mortgage unless there is an express intention against this in the Will.
  • capital gains tax – while a principal place of residence is exempt from capital gains tax,  investment properties are not. A beneficiary who receives a property will take it subject to any capital gains tax liability and this often isn’t thought about until the beneficiary goes to sell the property and is hit with a tax bill.

Read the rest of this entry »

Superannuation – a protected species

Posted on May 11th, 2017

Superannuation – it is to the asset world what the Orangutan, Black Rhino and Yantgzee Finless Porpoise is to the animal world – a protected species. 

The Superannuation Legislation provides clear rules limiting the use of superannuation, and access to it, other than in accordance with its intended use. For example, in the bankruptcy jurisdiction, superannuation is a protected asset, and is not available to creditors.

The Full Court of the Family Court has maintained the status of superannuation as a ‘protected species’ in the recent decision of Mackah & MackahRead the rest of this entry »

Commercial lease tenants – tips for avoiding disputes

Posted on May 5th, 2017

Disputes between Landlords and Tenants in relation to Commercial Leases occur frequently and can cost both parties significant amounts of money both in losses and legal costs. 

As a Tenant, there are a number of things you can do to minimise the chances of a significant dispute arising and, if a dispute does arise, increase the chances of a positive result.

By following these simple tips, you can drastically minimise the chances of a lengthy and expensive dispute arising; Read the rest of this entry »

Workers’ duty to communicate when absent through illness

Posted on April 13th, 2017

Even when absent due to legitimate illness or injury, workers have to stay in communication with their employer, or they may be dismissed. 

Mr Laviano was absent from work for an extended period due to a psychological injury.  He had received medical advice not to read or access any communication from his employer for a part of that absence – a period of about two months – but that advice was not passed onto the employer.  During this time, the employer wrote to him advising of a medical appointment.   Read the rest of this entry »

A new streamlined approach to enforcing orders

Posted on April 5th, 2017

The enforcement of parenting orders in the Family Law Courts has long been a difficult issue, as:

  • Judges generally do not welcome these applications, as they are often the product of a more serious underlying issue which cannot be fixed by a penalty; and they take away from the very limited time the Court has allocated to it to determine substantive proceedings (the final orders application).
  • Solicitors are mindful of the Court’s view, and the higher risk of costs orders for parties (both applicants and respondents), and are careful when determining whether or not such an application should be brought.

However, with the increasing number of self-represented litigants in the Court system, the prevalence of these applications is increasing as people look for a “quick fix” to the problem.
Read the rest of this entry »

Are you ready for the changes to retail leasing?

Posted on April 4th, 2017

Despite the fact that Retail Leases Act 1994 NSW (“the Act“) has been in operation for some 23 years, compliance with the Act is often rare. 

Just as Practitioners appear to be wrapping their heads around the operation of the Act, the Retail Leases Amendment (Review) Bill 2017 NSW (“the Bill“) was passed by the NSW Parliament on 21 February 2017. The Bill amends the Act in a number of areas. To assist you with understanding the changes as early as possible this time, I have set out the following “Cheat Sheet” warning of the major changes to the ActRead the rest of this entry »

When ‘missing home’ becomes child abduction

Posted on April 3rd, 2017

We live in a global village.  Our children, friends and relatives travel the world frequently.  They meet, fall in love and partner people from other countries.  Frequently they settle down and start families and make difficult decisions when deciding which country will be their home country to raise their children.  Relationships can be tough and their lives are often subject to different and complex pressures leading to relationship breakdown. 

It is not uncommon for a stay-at-home parent living in a foreign country to feel isolated and to want to return to their home country in order to be near family support and better job opportunities.  Some simply up and leave with the children.  Others visit overseas family with their children for a holiday, and whilst on holiday choose not to return to their partner and former place of residence.   Real people; real problems and difficult solutions.

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Genuine redundancy: your guide to consulting with employees

Posted on March 31st, 2017

The Fair Work Commission has recently looked at the extent of an employer’s consultation obligations in order for a dismissal to be considered a case of genuine redundancy.

Section 398 of the Fair Work Act 2009 states that an employer must comply with any obligations to consult with employees set out in an award or enterprise agreement, for a dismissal to be considered a case of genuine redundancy.

A common provision of modern awards is that employers must notify employees where a definite decision has been made to introduce major changes that will have significant effects on employees, such as termination and restructuring of jobs.  Read the rest of this entry »