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.

 

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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:

 

 

 

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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: 

 

 

 

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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.
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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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Assignment of contracts – pre-existing knowledge

Posted on March 27th, 2017

Where contractual rights are assigned; can the recipient’s pre-existing knowledge invalidate those rights?

In Walker Group Constructions Pty Limited v Tzaneros Investments Pty Limited [2017] NSWCA 27 just such an issue arose.

The case is both factually and legally complex but the relevant parts can be summarised as follows. Walker constructed some concrete pavements at the Port Botany Container Terminal. The construction contract included warranties to make good any defects in the construction. At the time of the construction, the relevant land was leased by P&O. The lease was later transferred to Tzaneros as was the benefit of the warranties to Tzaneros.
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Open plan shopfronts – are you breaching your privacy obligations?

Posted on March 21st, 2017

Open Plan Shopfronts Breach Privacy ObligationsOpen plan shopfronts are fast becoming the way of the future. Many banks, telco companies and insurance companies are already moving to a more open plan style of shopfront.

While this may be inviting to customers, it could mean you are risking a breach of your obligations under the Australian Privacy Principles.

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Elder abuse – wills and suspicious circumstances

Posted on March 9th, 2017

Helping elderly parents write a new Will can create difficulties, particularly if there are disputes in the family.

In a recent case of Estate Stojic, Deceased [2017] NSWSC 168, Mr Stojic had 5 children from different partners.  His last Will was made shortly before he died.  Mr Stojic ran a business and he chose one of his sons to run his company after his death.

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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 »

Hospital applies for guardianship orders

Posted on February 15th, 2017

In the recent case of NEJ [2017] NSWCATGD 1, the NSW Civil and Administrative Tribunal has allowed an Area Health Authority standing to apply to it for guardianship orders concerning a patient in hospital.  The patient had complex health issues and had been in hospital for some time. An Occupational therapist assessment found that it was unsafe to discharge her home.  

The purpose of the hospital’s application was to determine whether a guardian should be appointed to assist in the process of planning for her discharge from hospital.   The patient did not want to move into aged care and was resisting plans for her future.

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Spending Mum’s money

Posted on February 15th, 2017

spending money mum A recent case in the Supreme Court (Lindsay v Arnison [2017] NSWSC 41) highlights a need for family members to take seriously the requirement to keep proper financial records when helping aged parents pay bills and operate their accounts.

 

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