Making a Will – beware the assets test

Posted on July 16th, 2018

Making a Will - beware the assets testA couple who receive the aged pension and own their own home can have combined assets of up to $380,500.00 without their pensions being affected. If they have combined assets greater than that amount their pension may be reduced. A single person receiving the aged pension (and owning his or her own home) must have assets of less than $253,750.00 otherwise the pension can be affected.

As at 20 March 2018, the maximum basic rate of the aged pension for a couple was $1245.60 per fortnight (combined). For a single person the maximum basic rate of aged pension was $826.20 per fortnight. When a couple receiving the aged pension are considering their Wills it is wise for them to calculate what assets will be held by the survivor when the first of them dies. If the couple has combined assets in excess of $253,750.00 (disregarding their home) then the surviving spouse’s pension may be reduced depending upon the assets which pass to him or her. The survivor will receive the pension for a single person and the single person pension will be further reduced based upon how much he or she has above $253,750.00 (excluding the home). Read the rest of this entry »

The three questions kids are thinking about separation and divorce

Posted on July 9th, 2018

The three questions kids are thinking about separation and divorceRecently the Australian Institute of Family Studies released their Report “Children and young people in separated families: Family Law system experiences and needs”. The report involved interviews with 61 children aged between 10 and 17 years from 47 families in Victoria, New South Wales, Queensland and South Australia.

In summary, the recommendation from the Report is to “give children a bigger voice more of the time”.

From the comments the children made in the interviews, and from what my clients have told me over the years, children involved in Family Law disputes tend to ask the same kinds of tough, wrenching questions about separation and divorce. Read the rest of this entry »

If the husband was the puppet master, who was the puppet?

Posted on July 3rd, 2018

If the husband was the puppet master, who was the puppet?In a recent Family Law Full Court case, it was not in dispute that the husband exercised control over his 99 year old father’s unit trust (UT) including directing agents on behalf of the UT, using the UT’s assets as security for his own personal borrowings; intermingling his funds with the funds of UT and, since 2002, treating the UT as if it was his own.   It was the expectation of his estranged wife therefore that the assets of the UT should be included in the assets to be adjusted between the parties on settlement because the father’s UT was simply a puppet for the husband.

The Full Court and the trial Judge however disagreed and found, that whilst the father remained the owner of the UT, he was not a puppet of his son.  The husband had some “lawful right to benefit from the assets of the trust” and controlled some of the dealings of the UT, but they were not satisfied that the UT was a device used by him for his sole benefit. Read the rest of this entry »

Can lease obligations operate ‘prior’ to the commencement date of the Lease?

Posted on June 25th, 2018

Can lease obligations operate 'prior' to the commencement date of the Lease?Will a Court enforce provisions of a lease against a party in respect of a period of time prior to the commencement date of the lease? This was one of the questions raised in Bonafair Holdings Pty Ltd v Hungry Jacks Pty Ltd.

His Honour, Sackville AJA, concluded that the language used by the parties in the relevant clauses will be determinative on the issue. “It is of course possible for a lease to contain provisions attaching consequences to events or conduct pre-dating commencement of the lease… However, in the absence of any language evincing a contrary intention, provisions in a lease for a term of years ordinarily create rights and obligations between the lessor and the lessee as and from the date the term of the lease commences“. Read the rest of this entry »

Directors’ liability for legal costs

Posted on June 25th, 2018

A cautionary tale for directors who might think they can hide behind a “corporate veil” and avoid personal exposure.  Parties to a complicated dispute settled the dispute and entered into consent orders.   Subsequently, an application was made against one plaintiff company to enforce the consent orders.  The company had failed to execute all necessary documents.  When the plaintiff company continued to fail to comply, the Supreme Court (Tasmania) made an order under section 169 Supreme Court Civil Procedure Act 1932 (Tas) empowering the Registrar of the Court to execute the documents instead.  The Defendant then sought a costs order for the cost of enforcing the orders.  Read the rest of this entry »

Real improvement in real estate transactions using technology

Posted on June 18th, 2018

Real improvement in real estate transactions using technologyHave you noticed that a feature of electronic technology is the ability to collaborate?  A person in Adelaide and a person in Tea Gardens can now share information in a mouse click.  A new electronic system of conveyancing allows government agencies, financial lenders and lawyers to connect with each other online and to provide up to date information to each other.

The electronic platform where the collaboration takes place is known as the Property Exchange Australia Limited or PEXA.  Mullane & Lindsay now use it.  For clients, PEXA will improve the processing time for changing title to property and the release of sale funds.  If you are selling a property, cleared funds arrive in your account on the date of completion of the sale. Read the rest of this entry »

Bankruptcy and the “slip rule”

Posted on June 13th, 2018

Bankruptcy and the "slip rule"Most of us understand that once a judgment in a Court case is entered, it is final (except for any appeal rights). One minor exception, commonly known as the ‘slip rule’, is where an obvious error was made in a judgment or order. In the case of such an error, it can be corrected under the slip rule without the necessity for an appeal.

Slip rule applications are relatively rare. Even rarer was the situation that arose in 2016 when the Court was asked to make a slip rule correction to a judgment affecting a person who had become bankrupt. Under the Bankruptcy Act when a person becomes bankrupt, a creditor cannot “take any fresh step” in Court proceedings, except by leave. The issue the Supreme Court had to determine, was whether making a correction under the slip rule amounted to a “fresh step”. If so, the correction was not possible except by leave of the Federal Court (as opposed to the Supreme Court, where the proceedings had been instituted). Read the rest of this entry »

Lower than expected service leads to compensation

Posted on June 13th, 2018

Lower than expected service leads to compensationThe Applicants contracted the Respondents to arrange their wedding reception at a venue overlooking Sydney Harbour. At 4 PM on the big day a pipe burst causing a flood.

The Respondents did not own the venue and did not cause the leak. The Respondents notified the building Manager as soon as they became aware of the leak.  The reception was briefly delayed, tablecloths were placed on the wet floor, the room reconfigured to avoid the water leak, and buckets collected dripping water.

The tribunal was satisfied the respondent had not breached its guarantee to provide the services with “due care and skill” because it took measures to alleviate the problem. It was however satisfied that the water leak and slight delay made the reception not fit for purpose and the guarantee was unaffected by the fact the respondent did not cause the leak. Read the rest of this entry »

Costs – who pays when each party has some success

Posted on April 4th, 2018

The Supreme Court recently issued a cost decision that grapples with an issue that occasionally arises once litigation is finalised.  That is, if there are several issues in dispute in the proceeding, and both parties have some measure of success on various issues, who should pay costs?

The usual rule is that ‘costs follow the event’.  That is, the successful litigant usually gets an order that the unsuccessful litigant should pay their costs.  Costs are not intended to be a penalty but rather to recompense the successful litigant for the cost of vindicating their rights.  Where one party is wholly successful, they would ordinarily expect a costs order in their favour.

It is less easy to apply that ‘rule’ where each party has some, but not total, success. Read the rest of this entry »

Jones v Dunkel – the problem of not calling a witness at a hearing

Posted on April 4th, 2018

Most lawyers know the case Jones v Dunkel: in general terms, it is authority for the proposition that if a party does not call a witness who can apparently give evidence about a matter in dispute, the failure to call them allows the Court infer that the evidence of that person would not assist the party. This is one of the reasons why witnesses are often required to give evidence, even though they may not be of particular assistance to a litigant – to avoid an unfavourable inference if they are not called.

A recent Supreme Court decision, dealing with an insurance policy dispute, led to a discussion of the so called “Jones v Dunkel inference”.  The plaintiff made a decision not to call a number of witnesses at trial; and the defendant asked the Court to make a Jones v Dunkel inference. In dealing with that argument, the Court summarised the principles or considerations that are at play in deciding whether such an inference should be drawn. In particular, the Court suggested that it is the person asking for the inference to be drawn (that is, the opponent of the litigant who did not call the witness) who must prove two fundamental things namely:- Read the rest of this entry »

Liability in the absence of a therapeutic relationship

Posted on April 4th, 2018

The NSW Court of Appeal recently found a medical treatment provider was liable for personal injury, even though there was never a therapeutic relationship with the person who was injured.

Briefly, a Mr Mason suffered from psychological illness for which he was taking medication. He was remanded in custody on criminal charges, to Parklea Correctional Centre. It was privately operated by GEO Group under contract with the State Government. The contract required GEO to provide psychological and counselling services to inmates.

When Mr Mason was processed at Parklea, he told employees of GEO about his conditions and medications, but he was not prescribed any replacement drugs nor referred for counselling or other treatment. Days later, he jumped from a high level landing and suffered personal injury. He then sued GEO for those personal injuries. That case settled, but a related claim between GEO and its insurer continued because the insurer contended that its policy did not provide cover unless GEO had actually provided (medical) services. Read the rest of this entry »

Rental car agreements & drink driving

Posted on April 3rd, 2018

It is a common provision in car rental agreements that if the car is damaged as a result of the driver breaching a law in force where the accident occurs, insurance coverage will not be available. The clauses are often drafted to cover a wide range of breaches of the law but that would almost always include an accident that occurs when the driver was “over the limit” for blood alcohol.

One of the features of the Insurance Contracts Act, which governs a number of classes of insurance policies including car rental agreements, is that if there is a “technical” breach of the policy, but that particular breach did not cause the loss or increase the risk of loss, the insurer may not be able to refuse cover. However, that principle only applies where a policy of insurance exists – as Gardam’s case shows, it has no application to a document (such as a rental agreement) that is not an insurance contract. Read the rest of this entry »

Making an unfair dismissal application: what can you expect?

Posted on March 6th, 2018

The Fair Work Commission’s Annual Report for 2016-2017 has provided a number of statistics that shed light on what to expect when making an application to the Fair Work Commission (‘FWC’) for an unfair dismissal remedy.

According to the Annual Report, unfair dismissal applications are the largest category of applications received by the FWC each year, representing more than 40% of the total applications made to the FWC.

The FWC reports that the vast majority (93%) of unfair dismissal matters are either resolved by agreement of the parties through conciliation or withdrawn by the applicant. Only 2% of unfair dismissal applications are finalised by a decision about the merits of the case.  Read the rest of this entry »

Calculating compensation

Posted on March 6th, 2018

If you have been unfairly dismissed and the Fair Work Commission (‘FWC’) considers that reinstatement would be inappropriate, the FWC may make an order for compensation.

Under the Fair Work Act, there is a legislative cap on the amount of compensation that can be ordered. Where compensation is payable, it is capped at the lesser of 6 months’ pay immediately before dismissal or the equivalent of exactly half the current high income threshold. As of 1 July 2017, the unfair dismissal high income threshold was $142,000.00 meaning the maximum compensation that can be awarded is $71,000.00.  Read the rest of this entry »

Unfair dismissal remedies: reinstatement vs compensation

Posted on March 6th, 2018

If an employee has been unfairly dismissed, there are two potential remedies that may be ordered by the Fair Work Commission (‘FWC’): reinstatement and compensation.

Reinstatement is the primary remedy for unfair dismissals. According to section 391 of the Fair Work Act, an order by the FWC for reinstatement should relate to the position that the person occupied immediately prior to their dismissal, or an alternative position on terms which are no less favourable than the previous position. In circumstances where the position no longer exists with the employer, an order for reinstatement may be made to an equivalent position within an associated entity of the employer. Read the rest of this entry »

Is your resignation legally effective?

Posted on March 6th, 2018

If you have resigned, in certain circumstances it is possible that you may have unfair dismissal remedies available to you.

A resignation is not legally effective if expressed “in the heat of the moment” or when an employee is in a state of emotional stress or mental confusion such that they could not reasonably be understood to be conveying a real intention to resign.

If an employer accepts a resignation made “in the heat of the moment” the resignation may be characterised as termination of employment at the initiative of the employer and could result in the employee having unfair dismissal rights, allowing the employee to be reinstated or compensated. If a resignation is made “in the heat of the moment”, the employer should clarify or confirm with the employee after a reasonable time that the employee genuinely intended to resign.  Read the rest of this entry »

An Uber win in the Fair Work Commission

Posted on March 6th, 2018

The Fair Work Commission (“FWC”) has recently handed down a decision, Kaseris v Raiser Pacific V.O.F [2017] FWC 6610, finding that Uber drivers are independent contractors and not employees of Uber.

The applicant was an Uber driver and brought this case to the FWC seeking a remedy for unfair dismissal, after Uber terminated a Service Agreement that the parties had entered. For a finding of unfair dismissal to be made, it was necessary that the driver be an employee of Uber.

The FWC examined the relationship between the parties to determine whether the driver was an independent contractor or an employee. There is no single or decisive criteria to determine whether a contractual relationship is of employment or a contract for service. The court will consider a multitude of factors when approaching this question.  Read the rest of this entry »

What do the new privacy laws mean for you?

Posted on February 23rd, 2018

As of yesterday, 22 February 2018, new mandatory data breach legislation has taken effect. This means that certain types of data breaches, known as eligible data breaches, under the Australian Privacy Principles (“APPs”) have mandatory reporting obligations.

The APPs have now been in effect for almost four years. When they first came into effect, many organisations were caught off guard in terms of new requirements, including the need to have a privacy policy in place. The obligations under the APPs have now been extended even further.

The APPs contain certain obligations in relation to personal information and its use, disclosure and protection. These principles apply to a significant number of organisations, known as APP entities, including government bodies and private organisations with a turnover of more than $3 million. Read the rest of this entry »

Seeing a parent or a social event: which one prevails?

Posted on February 21st, 2018

As children get older their priorities change, and friends and social groups become increasingly significant to them. This creates a tension between the importance of socialising children and the importance of children spending time with their parents – particularly the parent with whom they do not live.

The Family Law Act obligates a parent to do all they can to encourage children to attend with the other parent pursuant to Orders. Read the rest of this entry »

Straight up or the Sphinx: when Judges speak up

Posted on February 19th, 2018

In family law matters, judges often provide preliminary views and encourage parties to contemplate settlement.  A judge might make comments that appear to favour one of the parties over the other, or that appear to indicate a pre-judgment of an issue in dispute before the presentation of evidence.

In the case of Darley & Darley [2016], the mother sought to set aside Court Orders on the basis that she had agreed to Orders by consent because the judge had placed undue duress and influence on the parties to settle, by highlighting the benefits to each of them of reaching their own agreement. Read the rest of this entry »