Trends in family court filings

Posted on March 19th, 2015

by Mark Sullivan

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

In February 2015 the Australian Institute of Family Studies released a report analysing trends in family law court filings over a 9 year period between 2004-05 and 2012-13.

The report sheds light on the impact on court filings of the 2006 parenting reforms.  These reforms encouraged greater use of non-court based mechanisms (such as mediation counseling) for resolving parenting disputes and placed hurdles to curb parents commencing court proceedings.  Read the rest of this entry »

Ambiguity in commercial contracts

Posted on March 13th, 2015

by Tony Cavanagh

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

Generally, where the terms and conditions in a commercial contract are clear, they are enforceable as drafted. However from time to time, Courts have looked at evidence about “surrounding circumstances” to determine precisely what contractual terms mean, where those provisions are ambiguous. The best known decision in this area is Codelfa which, amongst tother things, stands for the proposition that a Court must be satisfied a contractual provision is ambiguous before it can consider surrounding or extrinsic circumstances, and if it is not satisfied as to ambiguity it may not do so. Read the rest of this entry »

What is a case guardian?

Posted on March 6th, 2015

by Rose Laffan

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

Occasionally a question will arise as to whether a party has the necessary capacity to make their own legal decisions following the breakdown of a relationship or marriage.

Should the party’s treating doctor or a specialist state that the person does not have capacity but the proceedings or action needs to continue, it will be necessary to consider the appointment of a Case Guardian. Read the rest of this entry »

What are “personal effects” in a will?

Posted on March 5th, 2015

by Tony Cavanagh

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

Early in 2015 the NSW Supreme Court dealt with a dispute in which a widow argued that, properly understood, her late husband’s gift to her of ‘household furniture and furnishings and personal effects’ meant she should receive a motor vehicle, shares, money in bank accounts and on term deposit; and what appear to have been some convertible notes.

The case hinged on the legal meaning of the phrase ‘personal effects’. The widow argued that, because the disclosed estate property did not refer to household furniture and furnishings or items such as clothing, watches, accessories or appliances, the expression ‘personal effects’ must have been intended, in that context, to refer to things like bank accounts and share holdings. Read the rest of this entry »

Total and permanent disability insurance

Posted on February 27th, 2015

by Tony Cavanagh

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

Many Australians now have Total and Permanent Disability Insurance (TPD), particularly self employed individuals. Commonly, TPD is arranged through a superannuation fund and both the fund trustee and the insurer have to be satisfied of an entitlement to a policy benefit before it will be paid.

In Banovic v United Super Pty Ltd [2014] NSW SC 1470, a manual labourer who injured an arm made a claim for a TPD benefit. Eligibility depended on him proving that he was unlikely to ever be able to engage in “any” occupation for which he was suited, by reason of ‘education, training or experience’. The medical evidence showed he would never return to heavy labouring; but the claim was declined on the basis that there were other jobs, that were less physically demanding, that Mr Banovic could still perform. Read the rest of this entry »

The vexed question of hire car costs

Posted on February 27th, 2015

by Tony Cavanagh

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

Imagine your car is involved in a crash and is off the road for an extended period. You need that car for your day to day activities such as going to work, taking the kids to school and so on. You hire a replacement vehicle while your car is being repaired and then try to recover the hiring costs from the driver at fault, or their insurer. Can you recover the whole of the hiring cost, or will you be left out of pocket?

Because the dollar value of claims of this kind is relatively small, decided cases are often in the Local Court rather than in superior Courts. Local Court decisions (particularly in its Small Claims division) do not have the same precedent value as, say, a Court of Appeal decision, but they can still be instructive. Read the rest of this entry »

SMSF & Family Law: Be alert!

Posted on February 26th, 2015

by Mark Sullivan

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

New laws applying to SMSF contraventions commenced after 1 July 2014 and imposed administrative penalties, education directions and rectification directions on defaulting trustees.  Trustees can be personally liable for penalties of up to $10,200 per breach and may be directed by the ATO to rectify the contravention and undertake an SMSF education course.

If your relationship has broken down and you have an SMSF with your ex partner/spouse then be on notice that your responsibilities as a trustee or trustee director continue until your SMSF is wound up, or you have rolled your interest out of the fund into some other complying Fund and resigned as a director/trustee.  You are therefore still at risk and need to act with care and diligence. Read the rest of this entry »

Do not rely on an informal will

Posted on February 20th, 2015

By Michael McGrath

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

A recent decision of the Supreme Court of NSW serves as a timely reminder of the importance of having a legally valid Will and not relying on an informal document to carry out your wishes on death.

Under the Succession Act, the Court can recognise a document which appears to contain a deceased’s wishes as their Will, notwithstanding that all formal requirements have not been met. The Court must be satisfied however that the deceased intended the informal document to be their Will.

In the case of Burge v Burge [2014] NSWSC 1772, the deceased had previously made a legally valid Will with his solicitor in 1983, under which his spouse was his sole beneficiary. In 2007, the deceased made handwritten alterations to an unexecuted copy of his 1983 Will, including amending the sole beneficiary to now be his son. He initialled next to the changes and at the foot of the document, inserted the date and signed his name. His signature was not however witnessed as required for a legally valid Will.

The deceased’s spouse sought to administer the estate under the terms of the 1983 Will under which she was the sole beneficiary. The deceased’s son however sought an order that the amendments made in 2007 constituted the deceased’s informal Will and that the estate should therefore be administered under the terms of the 2007 informal Will, under which he was the sole beneficiary.

After much legal argument, the Court ultimately held the amendments made in 2007 did not constitute the deceased’s informal Will and therefore the estate was administered in accordance with the 1983 Will. The Court found that having previously executed a legally valid Will, the deceased would have been aware of the requirements for a legally valid Will and there was no reason that he couldn’t have arranged to make a new Will which complied with these legal requirements prior to his death in 2013. In the absence of other evidence as to the deceased’s intentions, the Court was not satisfied that the deceased intended the amendments made in 2007 to constitute his Will.

Michael McGrath is a Director at Mullane & Lindsay, and practises extensively in Commercial, Property & Estates Law. If you require any assistance in these areas please contact Michael McGrath or contact our Newcastle office.

Have you jointly guaranteed a bank debt?

Posted on February 19th, 2015

by Tony Cavanagh

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

On 11 February 2015, the High Court delivered judgement in a “co-guarantor” case. Put simply, two individuals had guaranteed a bank debt. The bank sued and one guarantor (G1) settled with the bank for less than 50% of the debt. The bank recovered the balance from the other guarantor (G2)(who then effectively paid more than 50% of the debt). G2 then sued G1, on the basis that joint guarantors have a right of contribution against one another – with the intent that they share equally in any guaranteed loss. G1 defended, arguing that the prior settlement with the bank meant a contribution claim could not be pursued.

Read the rest of this entry »

Does your self managed superfund comply with its obligations?

Posted on February 5th, 2015

by Tony Cavanagh

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

Self managed superannuation funds (SMSF’s) are a fact of life in Australia. On some measures, they collectively hold much greater wealth than either industry or retail funds, although many of them are relatively small in terms of the wealth they control. Despite that, SMSF trustees must comply with their trustee obligations, including under the Superannuation Industry (Supervision) Act 1993 (‘SIS Act’) or they risk significant consequences – both for the SMSF and for themselves personally. Read the rest of this entry »

Living apart together

Posted on January 29th, 2015

by Rose Laffan

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

Traditionally, people have been categorised as ‘married’ or ‘single’. Then sometime last century along came the ‘de facto’ concept.

The categorisation of a relationship is important as the Family Law Act sets out the legal confines of finalising financial matters following the breakdown of a de facto relationship using considerations very similar to those that apply to married couples.

Deciding if a relationship is a de facto relationship is fairly easy to do where a couple are cohabitating in a long-term committed relationship and they have intermingled their finances. But there is an increasing emergence of a new type of relationship – those who are ‘living apart together’ – that may fall within the definition of a de facto relationship.

Generally speaking ‘living apart together’ relationships involve a couple who are in a relationship but maintain separate residences. This may be due to circumstances, such as working interstate. But it can also result from an ongoing commitment to children or grandchildren from a prior relationship.

There can be an assumption that living apart together will shield wealth or assets held at the beginning of the relationship from the other partner should that relationship breakdown. However there is an increasing amount of litigation which may give pause.

Firstly, the Court has, in several matters, stated that the parties’ own view of the nature of the relationship is not determinative. Secondly, the Court has said it is important to look at the nature of the union rather than how it manifests itself.

Rose Laffan is a Senior Solicitor at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact Rose Laffan to arrange a consultation or contact our Newcastle office.

Pre-litigation offers of compromise

Posted on January 29th, 2015

by Tony Cavanagh

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

The NSW Supreme Court recently considered a costs application based on a pre-litigation settlement offer. The short facts were that a broken water pipe, for which the defendant was responsible, caused damage to the plaintiff’s family home. The dispute ultimately resulted in litigation, which settled prior to hearing. About 3 months before litigating, the plaintiff sent a written offer to compromise her claim. The offer, expressed to be open for 14 days, was for less than the amount the defendant later agreed to pay to settle the case.

The Court was asked to award indemnity costs, rather than ‘ordinary’ costs. The defendant accepted that the pre-litigation offer was a genuine attempt at compromise. However it submitted that, because the offer predated the filing of a Statement of Claim by 3 months, the defendant did not have a proper understanding of the legal and factual ‘underpinnings’ of the plaintiff’s claim; that when the offer was made there were still real questions about who bore legal liability and the amount of damages; and that the offer was open only for an unreasonably short period [6 – 9].

Read the rest of this entry »

Costs consequences of developments in the law

Posted on January 29th, 2015

by Tony Cavanagh

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

In Richardson v Oracle Corporation Australia Pty Limited [2014] 312 ALR 285 the Full Court of the Federal Court upheld the applicant’s claim that she had been sexually harassed in the workplace and very significantly increased the amount of general damages that had initially been awarded by the trial judge, from $18,000.00 to $130,000.00. The case is widely regarded as having ‘shifted the goal posts’ in terms of the amount of general damages that is now considered appropriate in sexual harassment claims.

The Court subsequently had to determine whether the applicant was entitled to pre-judgment interest on the amended damages (this was awarded without opposition); and whether the applicant was entitled to indemnity costs based on the respondent’s non–acceptance of an offer to settle the claim in 2010 for $106,500.00, plus interest and costs. The offer was made shortly prior to the trial at which she was initially awarded $18,000.00; however the offer was for significantly less than the amount of damages which the Full Court ultimately awarded.

Read the rest of this entry »

Bullying and costs

Posted on January 29th, 2015

by Tony Cavanagh

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

The Fair Work Commission (FWC) has recently issued a new decision under the “anti-bullying” provisions of the Fair Work Act (FWA); relating to costs. It gives some comfort to employers forced to deal with unreasonable claims.

A former worker alleged he had been bullied at work and brought an application; however the application was not filed until 6 days after the employment relationship was terminated. The FWC held that there was no reasonable prospect of that relationship resuming. The worker did not prosecute his application, effectively or at all, and did not appear at the hearing. The application was dismissed and there was no finding made as to whether, or not, past conduct in the nature of bullying had occurred.

Read the rest of this entry »

Breach of contracts for the sale of land – ‘innocent’ vendors beware!

Posted on January 29th, 2015

by Tony Cavanagh

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

A company contracted to purchase a large parcel of land at Jindabyne. Two individuals gave a guarantee that the company would complete the purchase. It did not. The vendor terminated the contract by reason of the purchaser’s repudiation and ultimately resold the property for a substantially lower amount (the original sale price was $7.21m; the resale price was $3.30m).

At trial, the vendor succeeded in a claim for damages calculated as the difference between the original contract price, and the ultimate resale price. Significantly, the resale occurred 13 months after the original contract. Neither the defaulting purchaser nor the guarantors participated in the initial trial but, after judgment was entered, one of the guarantors appealed.

Read the rest of this entry »

Restraint of trade in employment contracts

Posted on January 29th, 2015

by Tony Cavanagh

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

A former manager of a food wholesaler resigned and took employment with a competitor. The former employer BFF, sought to enforce a restraint of trade (ROT) clause in the employment contract. The two central issues to be determined were whether the clause was so uncertain that it was void; and secondly whether a particular aspect of the clause was unreasonable and therefore unenforceable.

Because of the way in which the clause was drawn, there were 8,190 separate covenants by the manager relating to his post employment activities. It was this factor that was key to whether the ROT clause was void for uncertainty. After reviewing various Queensland and NSW cases the Tasmanian Supreme Court held that the clause was not uncertain. It took the view that despite the number of covenants, the drafting technique was permissible and that each covenant could be independently understood.

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Joint tenants or tenants in common? – An important consideration when purchasing property

Posted on January 29th, 2015

by Lana Black

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

When two or more people purchase a property it is necessary for them to decide, at the time of entering into the Contract, whether to purchase the property as joint tenants or tenants in common. A mistake can be expensive to rectify and if left unrectified can have far reaching effects.

Joint tenants

If a property is held by two or more people as joint tenants then the owners own the whole property jointly (and each can therefore only have an equal share of the property).  The property can only be dealt with as a whole and in the event of the death of one of the owners it passes to the surviving joint tenant, irrespective of the terms of the Will of the deceased joint tenant.

Read the rest of this entry »

Selling a property with a swimming or spa pool

Posted on January 29th, 2015

By Robert Lindsay

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

From 29 April 2015, if a property is sold which has a swimming pool, then a valid swimming pool certificate of compliance (or an occupation certificate issued within the last 3 years) must be attached to the contract.  Failure to do so will allow the purchaser to rescind the contract within 14 days of the date of exchange of contracts (unless settlement has already occurred).

A swimming pool means an excavation, structure or vessel that is capable of being filled with water to a depth greater than 300mm and that is solely or principally used or that is designed, manufactured or adapted to be solely or principally used for the purpose of swimming, wading, paddling or any other human aquatic activity.

Therefore, spa pools are included, however spa baths are not. Read the rest of this entry »

When can a carer contest a Will?

Posted on January 29th, 2015

By Robert Lindsay

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

Section 57(1)(f) of the Succession Act states that a person with whom the deceased person was living in a close personal relationship at the time of the deceased’s death is an eligible person who may commence proceedings seeking provision out of the estate of the deceased person.

This section means that in some circumstances the carer of the deceased person can make a claim if he / she has not been included as a beneficiary in the Will.  A close personal relationship is a relationship (other than a marriage or defacto marriage) between 2 adult persons (whether or not related by family) who are living together, one of whom provides the other with domestic support and personal care.

Read the rest of this entry »

The New Drink Driving Penalties – A Must Know

Posted on January 23rd, 2015

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and practises primarily in  Commercial & Property Law.

The current penalty provisions

The most common forms of drink driving offences are found in Section 110 of the Road Transport Act and provide it is an offence to drive a motor vehicle when there is a prescribed concentration of alcohol present in the driver’s breath or blood. For the purpose of this alert we will focus solely on the Section 110 offences.

At present, a person convicted of a drink driving offence faces two classes of penalties. The first is the penalty which is imposed by the Court under the Crimes (Sentencing Procedure) Act (such as fines, bonds and imprisonment) and the second is disqualification of the person’s driver licence. Under the current legislation it is optional for some offenders to have some of the disqualification period suspended for participation in an interlock program. Read the rest of this entry »