Be sure of your grounds if seeking to enforce restraint of trade clauses

Posted on April 1st, 2014

by Tony Cavanagh

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

The NSW Supreme Court recently dismissed a claim seeking to enforce a restraint of trade (‘ROT’) clause in an employment contract.  Mr Miners held a senior position with Allied Mills.  He was ‘head-hunted’ by another firm in the same industry and accepted a job offer to work in NSW.  He went to some lengths both to inform Allied Mills that he would respect all its commercial confidences when he commenced his new role; and to arrange his new role in such a way that possible threats to Allied Mills’ commercial interests were minimised.  Despite that, Allied Mills took proceedings seeking to enforce a ROT clause in its contract with Mr Miners; and to restrain him commencing his new job.  Immediately the case was started, Mr Miners agreed, without admissions, not to take up his new position in NSW.  Soon afterwards his new employer found a separate role for him, working in New Zealand, and he started work there.

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Maternity leave – What are your rights?

Posted on April 1st, 2014

by Tony Cavanagh

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

The Fair Work Act 2009 Cth (‘FWA’) creates an entitlement to unpaid parental leave. That entitlement forms part of the National Employment Standards (‘NES’) and is separate from the paid parental leave scheme proposed by the present Coalition Government.

It is commonly understood that women can take up to twelve months unpaid parental leave associated with the birth of a child and that they have the right to return to work in their former position subject to complying with some notice provisions. Issues can sometimes arise as to the rights and obligations of employers and employees during and immediately after a period of unpaid parental leave. This article deals with one aspect of those entitlements.

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6 reasons why delaying property division after separation is not a good idea

Posted on April 1st, 2014

by Rose Laffan

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

Resolving property matters months or years after separation can be even more fraught with issues than resolving it soon after separation. This is because time delay can impact significantly on the practical realities:

1)  it can be hard to locate important documents – particularly if you have moved house – and many organisations, such as banks, destroy their documents after seven years so the necessary evidence may have quite literally disappeared.

2)  if more than 12 months has elapsed since you obtained a Divorce Order it will be necessary to obtain the consent of the Court to finalise your property division.

3)  often one party is left paying things like the mortgage and insurance on their own. These ‘post-separation contributions’ can be recognised in any later division but they are not always recognised ‘dollar-for-dollar’ and as such the party paying may never receive full credit or refund.

4)  one of the factors taken into account in a division are ‘future needs/future resources’ – so should one person pull ahead while the other has struggled then there may be an adjustment against the person who has done better.

5) remaining joint owners of real property (or other significant assets) can expose you to risk if loan repayments are not made – you may be solely liable for the debt and your credit rating may be affected.

6)  if you transfer your house from joint names to one party’s sole name – but do not do so in accordance with an Order or Legal Agreement – you may also miss out on valuable tax incentives such as a stamp duty exemption.

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.

Family law in the age of the internet

Posted on April 1st, 2014

by Rose Laffan

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

We undoubtedly live in a digital age. Around the world over 800 million people actively use Facebook – over 55% of the Australian population has a Facebook profile. Twitter has over 500 million registered users generating over 340 million tweets daily.

In increasing numbers the internet, and in particular social networking sites like Facebook and Twitter, are implicated in the breakdown of marriages and relationships.

A UK study indicated that one-third of divorce cases in England implicated Facebook. The 5,000 people polled cited three grounds: inappropriate messages sent to another person prior to separation, friends disclosing a spouse’s behaviour (either prior to or after separation), and negative comments about each other posted after separation.

A study by the American Academy of Matrimonial Lawyers found that in the past 5 years 80% of divorce matters included social media posts, mostly from Facebook.

So is there a way to combine family law and social networking? The guidepost might be to consider “How would I feel receiving this message?” And then there is what to avoid – negative comments, sarcasm, personal remarks, and threats. But perhaps it might be better to remember that family law is an intensely private and personal matter and maybe instead it would be better to think carefully about whether you need to say anything at all on social media. If you do feel the need to say something it would be worth considering whether this would be better sent to them privately.

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.

No enduring guardian – What will happen?

Posted on April 1st, 2014

by Lana Black

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

If a person loses his or her capacity to make decisions and does not have an enduring guardian appointed, the Guardianship Tribunal may, if requested to do so, appoint a guardian for that person. This procedure can be costly and time consuming. It is far easier and cheaper to appoint an enduring guardian.

The Guardianship Tribunal can appoint guardians for adults who:-

a)      are incapable of making their own lifestyle decisions because of a disability; and
b)      need someone with legal authority to make important life style decisions on their behalf.

The Tribunal will only appoint a guardian if a person’s lifestyle decisions cannot be made informally in the best interests of the person.

Essentially a guardian is a legally appointed substitute decision maker.

A family member or friend can be appointed guardian or the Tribunal can appoint the public guardian.

In most cases the Tribunal appoints guardians with specific functions such as:-

a)      accommodation – to decide where the person should live;
b)      health care – to decide what medical and dental treatment the person should receive;
c)      services – to authorise others to provide personal services to the person (usually to assist them to remain in their home).

While a failure to appoint an enduring guardian does not mean lifestyle and medical decisions cannot be made for a person if they lose their capacity to make those decisions for themselves, it does mean both time and money will be required to have a guardian appointed for the person.

Lana Black is a Solicitor at Mullane & Lindsay and practises primarily in residential and commercial property transactions and estate planning and administration.  If you require any assistance in this area please contact Lana Black to arrange a consultation or contact our Newcastle office.

Commercial Property Law Alert #1 2014: Five key questions you need answered about the PPSR

Posted on March 1st, 2014

by Lana Black

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

What is the PPSR?

The Personal Property Securities Register (PPSR) is a nation-wide online register which records security interests in personal property. The PPSR was created under and is governed by the Personal Property Securities Act (the Act).

Personal property is defined as any form of property other than land, buildings or fixtures. Some examples of personal property are cars, machinery, artworks and intellectual property.

Under the Act there are a variety of security interests in personal property which are capable of registration on the PPSR, including:

  • Mortgages and charges;
  • Retention of title clauses in sales agreements;
  • Financing or operational leases for a term exceeding 12 months (or three months for cars, boats or aircraft);
  • The interest of a factor in an account; and
  • Consignment arrangements.

How does the PPSR assist in enforcing security interests?

In order for a security interest to be enforceable against the grantor, it must have ‘attached’ to personal property, being the collateral. Attachment occurs where a grantor, who has rights in the collateral, accepts money or does some other act by which the security interest arises. It is important to note that as a general rule, in order for a security interest to be enforceable against a third party the security agreement must be in writing and signed by the grantor. Read the rest of this entry »

Appointing a financial manager

Posted on February 1st, 2014

by Lana Black

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

The Guardianship Tribunal has the power to make a Financial Management Order (FMO) which appoints a financial manager for a person who is incapable of managing their own financial affairs. Financial affairs include things such as operating bank accounts, investing money, paying bills, dealing with property and instructing solicitors in legal matters.

Similar to an attorney or guardian, a financial manager is a substitute decision maker.

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When can you appeal against an unfair dismissal decision?

Posted on February 1st, 2014

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.

The Full Bench of the Fair Work Commission recently heard an appeal from a decision, in favour of a dismissed worker, that he had been unfairly dismissed.  The appeal raised the issue of when treating employees differently may make an otherwise valid dismissal, unfair. It also looked at how dishonesty can affect dismissal decisions.

A Mr Ishak had been dismissed by Jetstar for assaulting another employee.  In the original decision an FWC Commissioner had found in favour of Mr Ishak.  The FWC found that Mr Ishak’s conduct in the assault of a co-worker was a valid ground for dismissal; that he had been afforded due process prior to being dismissed, and that most of the factors under Section 387 of the FWA did not suggest the dismissal was unfair. Mr Ishak succeeded on the sole basis that he was treated differently to the other worker involved.  The Commissioner held the other employee had also been engaged in an “assault”; and that both workers had been dishonest when speaking to Jetstar’s investigators about the incident. The fact that the co-worker was not dismissed caused the Commissioner to conclude there was such a significant difference in the way the employer had treated them, as to make Mr Ishak’s dismissal unfair.

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Guide dogs, guard dogs and courtroom skills

Posted on February 1st, 2014

by Ashleigh John

Ashleigh John is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law

Our Family Law Team consists of 3 experienced lawyers, 2 of whom are Accredited Specialists in Family Law and another who has completed a Masters of Applied Law in Family Law.  We share information, case authorities, war stories and experiences.  We are trained to assist clients to find solutions to their problems, preferably without going to Court.   It can often be of better value for a client to use their lawyer as a guide dog rather than a guard dog. 

When acting as a guide dog we draw on all resources and legal skills available to our clients to assist them through the trauma of their broken relationship.  Team member Ashleigh John is Chairperson of the Greater Newcastle Family Law Pathways Network and she shares her knowledge and experience with us and clients.   

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Simple strategic financial questions on separation

Posted on February 1st, 2014

by Mark Sullivan

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

When a relationship ends, there are some questions one should ask to ensure that a client/relative is not financially disadvantaged.  The answers and reactions to the questions will differ from family to family, as not all breakdowns are acrimonious.   What might seem a prudent reaction to these questions for one family may seem provocative and harsh to another estranged couple.   In any event, some of these more common questions need to be asked:

  1. Should you revoke and change your Power of Attorney?
  2. Who are the appointors under any Family Trust?  Are you the director of any companies or self managed superannuation fund?  If you die what will happen?
  3. Do you have children from a prior relationship and will they be disadvantaged if you do not change the executors or bequests in your will?   Do you need to change your will?
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Take care on the water – you could be liable to your rescuer

Posted on February 1st, 2014

by Kristy Nunn

Kristy Nunn is a Director at Mullane & Lindsay in Newcastle and practices in our Dispute Resolution and Litigation Team.

Summer is a great time for boating.  However some people may not be as experienced as others in all weather conditions.

A recent District Court decision confirmed that individuals who voluntarily place themselves in a position of danger owe a duty of care to their rescuers; and if they act negligently, they are liable for any loss or damage suffered as a result.

In the decision of Blackney v Clark [2013] NSWDC 144, Mr Blackney successfully brought a claim for damages against Mr Clark for injuries sustained while coming to the rescue of Mr Clark and his boat. 

In the early hours of 13 January 2010 Mr Clark’s tinnie came into trouble off Chinaman’s Beach, south of Evans Head in NSW. 

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Family Law Property Alert #1 2014: The Family Court and Special Contributions

Posted on January 31st, 2014

by Rose Laffan

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

The Appeal Court of the Family Court recently considered the question of whether the business acumen and successful investment ‘special contributions’ by the husband were enough to result in a property division significantly in his favour.

In the case of  Kane & Kane [2013] FamCAFC 205, the answer was a resounding ’no’.

Earlier this month the Kane & Kane decision from the Appeal Court of the Family Court made news headlines – “Husband loses $1million after Family Court rejects his ‘special skill’ ”: Sydney Morning Herald and “Divorce ruling likely to leave wealthy husbands with less”: The Australian.

This case was an appeal from a decision of a Judge who found that the husband’s contributions to the parties’ superannuation fund were substantially greater than that of the wife due to his acumen and successful investment and therefore the husband was entitled to a greater division of the superannuation fund upon separation. Read the rest of this entry »

Criminal Law – Other Sentencing Options: Forum Sentencing

Posted on January 1st, 2014

by Ashleigh John

Ashleigh John is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family Law.

While the maintenance of an effective criminal law system is important to the preservation of an ordered society, it is well accepted that jail is not always the way to deter criminal behaviour.  For this reason the NSW government has looked to other sentencing options to address undesirable behaviour.  One such example, is forum sentencing.

Forum sentencing brings together the offender, the victim/s and other people affected by the crime.  The aim is to try to repair the harm caused to the victim/s and community and provide an opportunity for the offender realise the real impact of their behaviour, and reduce the likelihood of re-offending.

Forum sentencing is only available in relation to certain offences where a plea of guilty has been entered and in certain registries (including Local Court registries in Raymond Terrace, Newcastle, Maitland and others).  There must also be an identifiable victim and agreed facts.

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Family Provisions Claims – Contesting a Will

Posted on January 1st, 2014

by Lana Black

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

Chapter 3 of the Succession Act (the Act) governs Family Provision Claims in New South Wales. A Family Provision Claim (FPC) is an application for a Court order that provision be made out of a deceased’s estate for a person’s maintenance, education and advancement in life.

A FPC may only be made by an “eligible person” as defined in the Act. To qualify as an eligible person, an applicant must fall into one of the following categories:

  1. Spouse of the deceased;
  2. De facto of the deceased;
  3. Child of the deceased;
  4. Former spouse of the deceased;
  5. (i) Wholly or partially dependent on the deceased, at any particular time, and
    (ii) Grandchild or a member of the household of the deceased; or
  6. In a close personal relationship with the deceased.

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Tape Recording in the Workplace – Can you use them? (Part 2)

Posted on January 1st, 2014

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.

In Part 1 we looked at a case in which an employee was dismissed for secretly recording a workplace disciplinary meeting. The Fair Work Commission found the dismissal was justified.

The recording itself was not part of the evidence in Schwenke; although the Commissioner inferred, form the content of Mr Schwenke’s affidavit, that it had been made. In this article we look at how, if at all, such a recording might find its way into evidence and the implications if it is admitted.

Depending on the State or Territory in which a person is employed, secretly recording a conversation may be a breach of legislation, that exposes the person making the recording to a criminal penalty.  As a general proposition, if a recording is made “illegally” there are likely to be difficulties in having it admitted into evidence in any proceedings, including unfair dismissal proceedings because, as a matter of public policy, Courts and Tribunals will generally not accept illegally or improperly obtained evidence. The rules of evidence do not permit it.  There are general exceptions to the rule such as whether the ‘probative’ (or persuasive) value of improperly obtained evidence outweighs other considerations, but these are relatively rare.

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Tape Recording in the Workplace – Grounds to Dismiss (Part 1)

Posted on January 1st, 2014

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.

The Fair Work Commission recently dealt with an unfair dismissal application in which a central issue was whether a disciplinary meeting had been secretly recorded and, if it had been, what the consequences of it were.

A Mr Schwenke was dismissed summarily, following a second disciplinary meeting on 7 December 2012.  During this meeting he told the employer’s representatives, that he had secretly recorded an earlier meeting.  Mr Schwenke was dismissed, both on performance base grounds and because of the secret recording. In his application for unfair dismissal, and in his “submissions” on hearing, he appeared to assert that he had in fact secretly recorded the first meeting; however in his cross examination, he denied having done so (although he conceded he had told the employer’s representatives he made such a recording).

The FWC found, on the balance of probabilities, that the recording had been made.  There was no dispute that any such recording was made without the permission of the employer’s representatives.  The Commissioner said “Secretly recorded discussions are objectionable because one party is being deceptive and purposely misleading the other party. …”.

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Intergenerational Loans and Gifts – A Family Law Perspective

Posted on January 1st, 2014

by Mark Sullivan

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

For more than 30 years I have been advising on the need for parents to act more prudently when lending money or making large financial gifts to children.  When these acts of generosity are not documented it makes it very easy later for an estranged spouse or ex de facto spouse of the child to dispute the gift, or the terms of the loan.  This may lead to polarisation of the parties and additional costs and litigation in resolution of their financial settlement.

Documenting gifts, loans and variations of loans is not an impregnable panacea for all issues, but it should diminish the risks of that money not being repaid to you on a relationship breakdown, or if a gift, on it not continuing to be of benefit to your child after the settlement.  

Judges in Family and Circuit Courts are regularly called upon to determine whether an advance of money from parents to a child:

- is a loan repayable to a parent as a debt, prior to adjustment of the other relationship assets; or

- is an asset of the child’s relationship to be divided between the child and their spouse or former de facto partner; or

- a financial resource of the child to be taken into account when the Court divides the assets of the separated couple.

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Another Shaggy Dog Story

Posted on December 1st, 2013

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.

The NSW Court of Appeal has recently dealt with a claim arising from a dog bite that involved the Companion Animals Act(CAA)  Briefly, a dog, Jake, strayed into an adjoining property.  He became involved in a fight with a dog that lived on that property.  Jake’s owner went onto the adjoining property to retrieve him and was bitten by the neighbour’s dog.  She sued in negligence and under Section 25 of the CAA which, in general terms, makes the owner of a dog liable in damages if the dog attacks or wounds another person.  There is an exception to liability if the attack occurs on property normally occupied by the dog, and the person who was bitten was not lawfully on the property.  That was the issue which engaged the Court.

It found Jake’s owner was not lawfully on the adjoining property.  That was partly because she had not taken reasonable precaution to prevent Jake escaping from his own yard (which is itself an offence under Section 12 of the CAA) and partly because under the general law, the owner was negligent for allowing Jake to wander unrestrained in an unfenced yard from which he could readily escape.

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Borrowing by Self Managed Superannuation Funds

Posted on December 1st, 2013

by Robert Lindsay

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

For several years, self managed superannuation funds have been permitted to borrow money to assist with the purchase of Real Estate. However if a Self Managed Superannuation Fund (SMSF) proposes borrowing then the trustee of the SMSF must be careful.

The property purchased by the SMSF must be held by a bare trustee which holds the property as trustee for the SMSF (which is the beneficial owner of the property). The documentation relating to the purchase of the property by the bare trustee must be in place before the property is purchased. The security for the loan is the property and the mortgage is a special type of mortgage referred to as “limited recourse”. This means that if the SMSF defaults with its repayments then the lender can only sell the property to recover the loan. Naturally, the margin between the loan and the value of the property being purchased is usually greater when a property is purchased by a SMSF.

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Effect of Reconciliation on a 12 month Separation

Posted on December 1st, 2013

by Ashleigh John

Ashleigh John is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law

Since 1975 the only ground for a divorce has been that the marriage has broken down irreconcilably.  This is proved by the spouses living separately and apart for a continuous period of 12 months.

However, throughout the Family Law Act there are a number of provisions which seek to encourage reconciliation.  One such provision is s.50, which applies to divorce.

Section 50 of the Family Law Act makes provision for a circumstance where:

  • A husband and wife have separated;
  • During the period of separation they recommence living together as husband and wife on one occasion; and
  • Within three months of recommencing their relationship they separate again and no longer live as husband and wife.

In such a circumstance the periods of separation before and after the reconciliation can be aggregated as if they were one continuous period. However, the period that the spouses were living together again does not form part of the 12 month period.

Ashleigh John 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 Ashleigh John to arrange a consultation or contact our Newcastle office.