Issues with Expert Evidence

Posted on November 9th, 2018

Issues with Expert EvidenceMany cases before the courts involve expert reports – such as medical evidence in personal injury cases; accounting evidence in loss of profit cases; and valuation evidence in property cases. However as a 2016 Supreme Court case shows, unless the report demonstrates that the expert has relevant expertise; and expresses the opinion in a way that allows a court to understand how the opinion was reached, it may be rejected as evidence.

The particular case was a complex fire/arson dispute relating to a fire at a property at Mosman in Sydney. At the time of the fire, significant extensions/renovations were underway. The insurer declined the claim on the basis that the property owner had set, or colluded in setting, the fire and had made misrepresentations in relation to his insurance claim. Read the rest of this entry »

Loans to Children – Don’t be Vague

Posted on October 25th, 2018

Loans to Children – Don't be VagueWhen making loans to children, you will probably be nagged by conflicting emotions and truisms.  Should I document the loan for clarity? But they look so happy together and can use it more now than after I die. I worked hard to earn that money; what if there’s another GFC and I need to be repaid?   It’s all peace now, but should I prepare for war? Will a stitch in time save 9?

I cannot over emphasise the need for clarity and documentation when making loans to children.  If it is a loan, it needs to be documented and shown that there is an intention to create legal relations.  The loan document should record the amount(s) being advanced; the interest rate, if any; the term of the loan; and when it must be repaid. If it is a large enough amount and you want security, then you should insist on a registered mortgage.  Speak about the “elephant in the room” with your child’s partner/spouse, as awkward and difficult as that might be.  It is a loan to your child and it will need to be repaid. Read the rest of this entry »

Contested Will… when a claim can be made

Posted on October 15th, 2018

Contested Will… when a claim can be madeSection 58 of the Succession Act 2006 provides that an application to contest the Will of a deceased person must be made no later than 12 months after the date of death of a deceased person. However, the Court can on sufficient cause being shown order that an application be permitted to proceed notwithstanding that it is made more than 12 months after the date of death of the deceased person. There must be a very real reason why the application was not brought within time. Read the rest of this entry »

Can an employer discriminate based on criminal record?

Posted on October 10th, 2018

Can an employer discriminate based on criminal record?A recent case in the Australian Human Rights Commission (“AHRC”), BE v Suncorp Group Ltd [2018] AusHRC 121, has looked at the issue of discrimination against a prospective employee due to their criminal record.

The definition of ‘discrimination’ in section 3(1) of the Australian Human Rights Commission Act 1986 provides that discrimination “does not include any distinction, exclusion or preference in respect of a particular job that is based on the inherent requirements of the job”. Therefore, employers can choose not to employ a person because they have a criminal record if the criminal record is relevant to the inherent requirements of the job.In Qantas Airways v Christie [1998] HCA 18, Brennan J stated that “the question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs”. This means that after committing some offences, there may be some jobs that a person will not be eligible to perform by reason of their criminal record. For example, it would not be considered discrimination if an employer did not employ a person with a criminal record involving dishonesty offences if the employment involved tasks requiring honesty such as dealing with sensitive and confidential information; or dealing with money. Read the rest of this entry »

What Is the Value of a Lost Opportunity?

Posted on October 5th, 2018

What Is the Value of a Lost Opportunity?When is a ‘lost opportunity‘ really lost? And, when it is, what’s it worth?
These were the questions considered by the NSW Court of Appeal in the recent decision Mal Owen Consulting Pty Ltd v Ashcroft [2018] NSWCA 135.

Background
In 2006, a solicitor, Ashcroft, was retained to recover a debt. Court proceedings were started but not actively pursued (the First Proceedings). This was accepted by Ashcroft as a breach of professional duty.

In 2010, new solicitors were appointed and fresh proceedings commenced which resulted in a judgment debt of $200,808.00 been awarded (the Second Proceedings). The subsequent appeal was unsuccessful and on 18 December 2013 the debtor entered bankruptcy. The plaintiff was not paid a dividend from the bankruptcy. Read the rest of this entry »

Unregistered Lease interest and the sale of a property

Posted on September 27th, 2018

Unregistered Lease interest and the sale of propertyWhen an owner sells a property that is subject to existing tenancies, it is always preferable to have the relevant leases to the tenants registered on title. This ensures that the lease automatically, by virtue of the Real Property Act (NSW) transfers to the purchaser on settlement and the tenant’s leasehold interest is preserved in the subject property.

However, it is not uncommon for a lease not to be registered on title. Usually, this arises in circumstances when the term of the lease (and any option to renew) does not exceed three (3) years. Read the rest of this entry »

Controversial changes in the air – Restructure of Federal Circuit Court and Family Court

Posted on September 21st, 2018

Controversial changes in the air – Restructure of Federal Circuit Court and Family Court In the week that Australia was changing prime ministers, significant changes were being introduced for consideration in relation to the proposed restructure of the Family Court of Australia (FCA) and the Federal Circuit Court of Australia (FCCA) –  the courts that resolve family and relationships disputes.

On 23 August 2018 the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 were introduced to the House of Representatives. Read the rest of this entry »

Insurance non-disclosure – The Importance of what an Insurer knows

Posted on September 12th, 2018

In 2017, the Supreme Court considered a dispute about whether an insurer had to pay out a claim in circumstances where it alleged its insured had failed to disclose relevant matters in its proposal.

The (very brief) facts were that the insured was a company that operated a petrol station. Its insurance policy did not cover any liability arising from gradual pollution. In June 2013, a sewer near the petrol station exploded and it was ultimately determined the explosion was caused by a sudden petrol leak. The company carried out both repairs and preventative work; and then claimed on its policy. The insurer declined cover. Read the rest of this entry »

Your Guide to Family and Domestic Violence Leave

Posted on August 30th, 2018

Your Guide to Family and Domestic Violence LeaveThe Fair Work Commission (“FWC”) has recently recognised the impact of family and domestic violence (“FDV”) on employees and employers in the work place. The FWC noted in its Four Yearly Review of Modern Awards (“the Review”) that employees who experience FDV often also experience disruption to workplace participation which can in turn cause financial difficulties.

As a result of the Review, changes came into effect on 1 August 2018 which apply to all modern awards and allow employees experiencing FDV to five days unpaid leave per annum (“FDV Leave”). Read the rest of this entry »

Things to tell your Family Law lawyer in the first consultation

Posted on August 29th, 2018

Top 8 things to tell your Family Law lawyer in the first consultationI understand that no one likes to air their dirty laundry to a lawyer they have just met. But, in the context of Family Law there are three important things to bear in mind:

  • You cannot change your past. It is important to be honest about the past if it is relevant to the outcome;
  • If I am going to provide you with sound legal advice, it is vitally important that I know about all the skeletons hidden away in your closet. This is especially true in Family Law, when every seemingly forgotten fact from your past could be important in determining the matter – or in a bad case, could be used by the other side to build a case against you; and
  • I take the duty of confidentiality that I owe you very seriously. Without your express consent I cannot reveal the information you to tell me.

Read the rest of this entry »

Charity does not always begin at home

Posted on August 24th, 2018

Charity does not always begin at homeLever v Attorney General of NSW [2018] NSWSC 838

A Will-maker left a gift of approximately $4.5m to her nephew and his wife to create a trust to “benefit women and children in the United Kingdom“.  The Will-maker was in the process of divorce at the time the Will was made and did not want her estate to go to her ex-husband or his children.  A Trust known as the “Ellie Trust” was established in an effort to comply with the Will and the purpose of the trust was to “preserve and protect the mental and physical health of women and children who have suffered domestic violence through the provision of refuges and safe accommodation in Liverpool”. Read the rest of this entry »

Can my step child contest my Will?

Posted on August 10th, 2018

 

Can my step child contest my will?When people talk about contesting a will, they are talking about family provision claims. Under the Succession Act, only certain classes of people are eligible to make a family provision claim. These are:

  1. a spouse;
  2. a de facto spouse;
  3. a child;
  4. a former spouse;
  5. a person who was
    1. wholly or partially dependant on the deceased at any particular time; and
    2. either a grandchild or a member of the same household as the deceased at any particular time; or
  6. a person in a close personal relationship with the deceased.

Read the rest of this entry »

When Customary Law meets Succession Law

Posted on July 31st, 2018

When Customary Law meets Succession LawIn Re Estate Jerrard, deceased [2018] NSWSC 781 an indigenous young man died in a motor accident without a Will and with no spouse or children.  Superannuation death benefits were payable into his estate. His parents were his closest relatives.  The deceased had little contact with his father and lived with his mother.  His mother made a claim for the whole of his estate to be distributed to her.  She relied on Part 4.4 Succession Act 2006 (Part 4.4.) which provides that a person may apply to the Court for a distribution order under “the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous deceased belonged” (customary law). She argued that according to customary law she should receive the entire estate. Read the rest of this entry »

When is a Will a Will?

Posted on July 27th, 2018

When is a will a will?Section 8 of the Succession Act provides that a document (or part of a document) that “purports to state the testamentary intentions of a deceased person and has not been executed in accordance with the provisions of the Succession Act 2006 can be deemed to be the deceased’s Will if the Court is satisfied that the person intended it to form his or her Will”.

On 9 October 2017, the Supreme Court of Queensland in Nichol v Nichol and Anor determined that a text message on the mobile phone of the deceased was deemed to be his Will. The unsent text message was made (apparently) sometime prior to 11 October 2016. The mobile phone with the message was found with the deceased when he was discovered on 10 October 2016. Tragically, the deceased took his own life. The message read as follows: Read the rest of this entry »

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 »