Contributory negligence in motor accident claims

Posted on April 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.

In March 2007 Ms Chadwick was rendered paraplegic in a motor accident. She had been a passenger in a vehicle driven by Mr Allen who had a blood alcohol reading of 0.229. It was clear the manner of his driving caused the crash and Ms Chadwick’s injuries. Mr Allen and a friend had been drinking over an extended period of time. In the early hours of the morning Allen, Chadwick and the friend went for the drive looking for cigarettes. Ms Chadwick was initially driving because she had not been drinking as she was pregnant. However during the trip she stopped and left the driver’s seat briefly. When she returned Allen had moved to the driver’s position and refused to vacate it. Chadwick got in and the crash occurred soon after. She was not wearing a seatbelt at the time.

The group was on a driving holiday and the incident occurred on the darkened outskirts of an unfamiliar town. Ms Chadwick gave evidence she was disoriented; thought she was much further from the town than she in fact was and that there was no safe way of returning to the town (where her children were asleep at a motel) except by getting back into the car. Read the rest of this entry »

Hands off my documents! – Confidentiality of third party information in family law matters

Posted on April 20th, 2016

by Ashleigh John

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

It is common practice in family law matters for a Subpoena to be issued to third parties seeking copies of their notes or personal documents. This creates a conflict between the rights of the third party to confidentiality of their information, and the rights of justice to the litigant.

This issue was recently considered by the Full Court of the Family Court in circumstances where the husband to family law proceedings sought the production by the wife’s mother and brothers of details of the wife’s late father’s estate, including the will and list of assets and liabilities of the estate.

The family argued that the Court could not guarantee that their private information would not be leaked into the public domain as a result of their compliance with the Subpoena. Read the rest of this entry »

Why not cap your warranties?

Posted on April 20th, 2016

by Lachlan Page

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

We all know that warranties play a significant part of negotiating sale transactions.

The usual dance involves the Purchaser seeking extensive warranties and the Vendor resisting with the end result somewhere in between.

There are a couple of techniques that may assist a Vendor/Vendor’s Solicitor in negotiating warranties that are not too onerous on the Vendor without derailing the transaction altogether. Read the rest of this entry »

Agency agreements and contractual traps

Posted on April 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.

Mentmore Pty Ltd wanted to import some goods. It obtained finance from a lender, Moneytech Services Pty Ltd to do so. Moneytech was named as the purchaser of the goods, pending payment by Mentmore. Under specific provisions of The Customs Act an ‘owner’ of goods can appoint a customs agent to act for him. “Owner” is defined to include someone claiming an interest in the goods. Technically, in these circumstances, Moneytech was an ‘owner’; and it appointed Megatop as its customs agent to receive the import. Read the rest of this entry »

Choosing the right words to motivate clients to use you

Posted on April 8th, 2016

by Felicity Wardhaugh

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Elizabeth Stokoe from the University of Loughborough conducted some research into how using the right words on the telephone could motivate the public to engage in mediation.  Her observations are useful for any service marketing to the public.  Her research article is published as: Elisabeth Stokoe, “Overcoming barriers to mediation in intake calls to services: Research-based strategies for mediators”, 2013 (29) (3) Negotiation Journal 289.  A UK marketing guide for mediation practices https://www.gov.uk/government applies the research and makes some practical suggestions.  The study involved transcripts from 200 intake calls to 5 mediation services in the UK.   Read the rest of this entry »

“Off the plan” contracts – Developers rights to rescind under sunset clauses

Posted on April 8th, 2016

By Michael McGrath

Michael McGrath is a Director at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team.

As of 2 November 2015, the Conveyancing Amendment (Sunset Clauses) Act 2015 (NSW) came into force and applies to off-the-plan contracts for sale of residential lots and restricts a developer from automatically rescinding an off-the-plan contract under a sunset date clause.

The government had expressed concern that developers were intentionally delaying the registration of plans past the sunset dates provided for in contracts, with the result that they could rescind and resell at higher prices in rising markets. Read the rest of this entry »

Buying a Business? Beware the GST Trap!

Posted on April 8th, 2016

by Lachlan Page

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

When purchasing a business in Australia you are usually able to take advantage of a GST exemption under the A New Tax System (Goods and Services Tax) Act 1999 (‘the GST Act‘).

The exemption is known as the ‘sale of a going concern’ exemption. In order to satisfy the sale of a going concern exemption the Purchaser ‘must receive all of the things that are necessary for the continued operation of the enterprise [business].’ Read the rest of this entry »

Have you ever wondered how to help a friend during separation?

Posted on April 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

Most of us know someone who is currently going through a separation or who has gone through one in the past but do you know what to say to them to help them through this often difficult time?

Family law is such a multifaceted jurisdiction that obtaining expert legal advice is a necessity. With the complexities of modern life – with everything from stepfamilies to intricate family trusts – the days of armchair advice may be over. Read the rest of this entry »

Alcohol and dismissal for serious misconduct

Posted on April 8th, 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 senior manager was summarily dismissed from employment following a heavy drinking session during (but not as part of) a work conference. He sued for breach of contract. At trial it was held summary dismissal was not warranted. It was also held that the employer could have given notice and terminated his employment on notice, but would not have done so for roughly another 2 years. On that basis he was awarded just under $300,000.00 as damages, being the amount he would have earned prior to being dismissed on notice. The employer appealed both as to whether summary dismissal was justified and on damages. Read the rest of this entry »

Redundancy and alternate employment

Posted on March 30th, 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 ‘redundancy’ occurs when an employer no longer requires a given job to be performed by anyone. Generally, in that situation, an entitlement to a redundancy payment arises.  There are some exceptions – one of which is where the employer “obtains other acceptable employment for the employee”.  In that situation the employer can apply to the Fair Work Commission (FWC) to reduce the amount of redundancy pay that would otherwise be required.

The issue was recently considered by the Full Bench of the FWC. A security company, FBIS, lost a contract.  An alternate contractor was appointed.  FBIS took a number of steps to facilitate its employees being engaged by the new contractor and 49 of 53 employees were offered and accepted positions with the new contractor on very similar terms to their previous jobs with FBIS.  FBIS then applied to reduce the amount of redundancy paid to the workers, under Section 120.  It was originally successful, but the decision was reversed on appeal.  The matter then went to the Full Bench.  Read the rest of this entry »

Hunter YoungGun | Kristy Nunn

Posted on March 22nd, 2016

Kristy Nunn is a Director in the Dispute Resolution & Litigation Law group and has been with Mullane & Lindsay since 2004.

She is also a member of the Law Society of New South Wales, the Newcastle Law Society, the Australian Insurance Law Association and the Women Lawyers Association of NSW.

Kristy is motivated by meeting and exceeding client expectations and ensuring her work continues to enhance her professional reputation.

http://hunterheadline.com.au/hunter-younggun/kristy-nunn

Property division and life expectancy

Posted on March 15th, 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 decision of Fontana and Fontana the Full Court of the Family Court considered an appeal where the wife was to receive 56.5% of the assets and 55% of the superannuation. In relation to the non-superannuation assets the trial judge found that the wife had made contributions that equated to 52% but that an adjustment of 4.5% should be made for future needs, bringing the total to 56.5%. Read the rest of this entry »

Traps with electronic signatures

Posted on March 15th, 2016

by Tony Cavanagh

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

Late in 2015 the NSW Supreme Court heard a dispute relating to a personal guarantee of a credit account, apparently signed with an electronic signature.

A building company (IDH) had a credit account with a building supplies company (Williams). IDH had an internal system allowing directors to attach signatures electronically to documents. Williams required personal guarantees from directors of building companies such as IDH. The case related to whether one of three directors, a Mr Crocker, had in fact attached his electronic signature to the personal guarantee, or authorised someone else to do so (or whether he had later ‘ratified’ the guarantee, even if he did not initially sign it). Read the rest of this entry »

Does serious misconduct always justify termination?

Posted on March 8th, 2016

by Tony Cavanagh

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

Serious safety breaches are often regarded as sufficient justification for immediate termination of employment. The rationale, at least in part, is that employers have obligations for the workplace safety of all workers and that serious safety breaches by one worker, can put all workers at risk.  However this is not automatically the case. Read the rest of this entry »

Can you redact or obscure documents produced on subpoena?

Posted on February 23rd, 2016

by Tony Cavanagh

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

The Western Australian Supreme Court recently dealt with a subpoena dispute. The case was about a building contract under which a builder was contractually obliged to insure the structure being built. A storm damaged the structure; and the plaintiff owner alleged that the builder had breached its obligation to arrange adequate insurance, with the result that owner of the structure suffered a loss.

An issue in dispute was whether or not the builder had taken adequate insurance. A subpoena was issued for the builder’s policy document. It was produced by the insurer, both in full and as a partly redacted or obscured document. There was no objection to an inspection of the redacted document but there was an objection to reading the policy document “in full”. The objection was on the basis that the policy contained commercially sensitive and irrelevant (to the dispute) information. Read the rest of this entry »

What happens if I die without a Will?

Posted on February 22nd, 2016

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

Where a person dies without a valid will he/she is said to have died intestate.

The Succession Act 2006 (“the Act”) contains provision as to how an estate is to be distributed in the event a person dies intestate. Generally speaking, the way an estate is to be distributed will be determined by reference to the deceased person’s circumstances at the time of death. Essentially, the Act provides that where a person dies intestate his/her estate will be distributed as follows: Read the rest of this entry »

When is smacking your child assault?

Posted on February 19th, 2016

by Ashleigh John

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

There is a difference of opinion between many parents about disciplining children. For many Baby Boomers and Generation X, a smack on the behind or a clip across the ear was a normal occurrence; however children of modern day parents are more likely to spend their time in the naughty corner, or having privileges such iPads, mobile telephones and television withdrawn.

Still, the occasional smack to a naughty child remains a common form of discipline in our community, so the question remains, when is a smack an assault? Read the rest of this entry »

Insurance policies – the duty of disclosure

Posted on February 15th, 2016

by Tony Cavanagh

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

All applicants for insurance cover have a duty to disclose every matter they know, or could reasonably be expected to know, might be relevant to the insurer’s decision to enter an insurance policy. That obligation now forms part of the Insurance Contracts Act, but has always been part of the common law.

The issue of disclosure was considered recently by the NSW Court of Appeal in relation to a motor vehicle property claim. Mr O’Farrell’s insured car was stolen and he made a claim.  It was refused on the basis that, prior to obtaining insurance, he had failed to disclose two criminal convictions.  The matter went initially to the CTTT (where the insurer was ordered to pay) then to the District Court (which reversed the CTTT decision) and finally to the Court of Appeal, which reinstated the CTTT decision. Read the rest of this entry »

Valuing a business for family law property division

Posted on February 12th, 2016

by Rose Laffan

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

The valuation of a business is a complex objective. When it is to be done for consideration of how to divide property in family law matters it is even more complex.

This is because the concept of ‘fair market value’ – the price that might be negotiated in an open market between an informed and willing buyer and an informed and not anxious seller, both acting at arm’s length – is confronted by the strategic interests that are characteristic of family law disputes.

In family law, allegations can be made that the value of the business has changed since separation. For example, one party has eroded the working capital, or that assets have now been hidden, or even that existing trade has been deliberately impaired. Read the rest of this entry »

The overlooked cornerstones of the Retail Lease Act 1994 (NSW)

Posted on February 10th, 2016

by Lachlan Page

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

Despite the fact that the Retail Leases Act 1994 (NSW) (“the Act“) has been in operation for over 20 years, it is surprising how many Leases are non-compliant with the Act.

It is prudent for commercial business owners and, more importantly their Solicitors, to have a grasp on the cornerstones of the Act and the relevant consequences.

Preliminary Steps before entering into a Retail Lease

Prior to the parties entering into a Retail Lease: Read the rest of this entry »