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 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 »

The women are closing in…

Posted on July 20th, 2016

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 »

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 »

Do I pay GST when Buying or Selling a House?

Posted on June 27th, 2016

by Lachlan Page

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

When buying or selling a property, it is important that you consider any GST implications under the A New Tax System (Goods and Services Tax) Act 1999 (CTH) (“the Act“).

The Act provides that the sale of a property can either be treated as a taxable supply, GST free or an input taxed supply. Each of these categories result in different treatment in relation to GST.

Generally speaking, the sale or purchase of a residential premises will be GST free. A residential premises is defined as a premises that can be occupied, is occupied or is intended to be occupied as a residence. As the sale/purchase of vacant land cannot be occupied until a residence is constructed, vacant land will not be considered a residential premises. Read the rest of this entry »

Tips for preparation for your court attendance

Posted on June 15th, 2016

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

What to wear: There are no rules about what to wear in court but you need to be as relaxed as your circumstances allow. The court is a formal place so you should dress neatly and respectfully. If you might not get into your local club because what you intend to wear breaches their dress code, then it will more than likely be unsuitable for court.

Children at court: Courts are not appropriate places for children for all of the obvious reasons. We want you to be focused and as relaxed as your circumstances allow.   Therefore, you will need to make other arrangements for your children’s care when you come to court.   This includes having a Plan B for getting them to and from school if it is an early start or if there is a risk of a late finish, or having them cared for the day if they are under school age. Read the rest of this entry »

What is the difference between a business name and a company name?

Posted on June 15th, 2016

by Lachlan Page

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

Although a relatively simple concept, the difference between a Business Name and a Company Name is not well understood.

The most important differentiating characteristic between a Business Name and a Company is that a Company is a separate legal entity and a Business Name is not. This means that a Company is, for all intents and purposes, treated like a human being in that it is able to enter into agreements or transactions in its own right. Read the rest of this entry »

Statutory wills – Part 1

Posted on June 7th, 2016

By Robert Lindsay

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

Section 18 of the Succession Act 2006 allows the Court to make a Will for a person who does not have testamentary capacity.

The case of Secretary Department of Family and Community Services v Kay (in 2014) involved the Supreme Court making an order that a Will be made on behalf of a 12 year old girl who lacked testamentary capacity. Her death was imminent. The girl was born with a severe disability and her mother had a long history of drug abuse. The identity of the father was not known. The mother had a poor record of caring for her daughter. When the girl was about 7 years of age, she was the victim of an assault by the mother’s then de facto partner, which occasioned head injuries necessitating life-saving surgery to remove a clot from her brain. As a result, the child was taken into the care of the Department of Family and Community Services. She was subsequently placed with foster parents in whose care she remained, until she died. Read the rest of this entry »

Pawsing for thought – making sure your pets are safe

Posted on June 7th, 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.

It is increasingly common for a Testator (person writing their Will) to want to make sure that their pet is cared for if they die. It is not possible to leave a gift of money directly to a pet. However, it is possible to give a pet to a trusted person. It is important to make sure that this person is willing to take over the responsibility. It is also helpful to gift some funds to that person either directly or through an Executor so that vet bills and other expenses are covered. Read the rest of this entry »

Have you considered the risks involved in loaning money to family members?

Posted on June 7th, 2016

by Lachlan Page

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

It is common for people to loan sizable sums of money to family members from time to time. Whether it be a loan to help a family member out of a financial crisis, for the deposit on a new home or to start up a new business.

If you are in the fortunate position to be able to loan money to a family member, you should still approach the issue from a sensible and prudent standpoint. Any loan of a sizable nature should be documented appropriately in a Loan Agreement. Read the rest of this entry »

Should an inference be made against a party that fails to call a witness?

Posted on May 23rd, 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 Masoud and Masoud the Full Court of the Family Court was required to consider whether the trial Judge had failed to draw an inference against the wife when she had not called her father and mother as witnesses in relation to money that they all said her parents had loaned to her and which the husband thought had been a gift.

The so called “rule in Jones and Dunkel” allows a Court to draw an inference unfavourable to the party that failed to call the witness, such that the evidence of the uncalled witness would not have assisted the party’s case. Read the rest of this entry »