When death benefits are available to creditors of a bankrupt

Posted on September 15th, 2017

When it comes to bankruptcy and superannuation, it is well established that a lump sum death benefit payment from a regulated super fund to a bankrupt is not available to creditors. The 2016 Federal Court decision of Trustees of the Property of Morris (Bankrupt) v Morris (Bankrupt) [2016] FCA 846 confirmed this.

In July of this year the Federal Court again looked at the issue of bankruptcy and superannuation death benefits, but from a different perspective.

In the case of Cunningham (Trustee) v Gapes, in the matter of Gapes (Bankrupt) [2017] FCA 787, the question asked of the Court was whether a death benefit which passed through the estate of a deceased, and was ultimately distributed to a bankrupt, was protected from creditors. The short answer – no. Read the rest of this entry »

Self managed superannuation funds, defined benefit interest rates for 2017

Posted on August 21st, 2017

Superannuation assets in aggregate were almost $2.3 trillion at the end of the March 2017 quarter and are now at an all time historical record level.

It is possible to split the superannuation entitlements of married (and de facto couples, except in Western Australia) as part of a property settlement adjustment.   Such splits need to be the subject of a Court order or a Superannuation Agreement entered into strictly in accordance with the Family Law Act.  Read the rest of this entry »

Think before you terminate!

Posted on August 15th, 2017

If you are thinking of terminating a contract that is of any significance, you must obtain legal advice prior to doing so.

Too often we see people take action to terminate a contract as a result of circumstances that they consider entitle them to terminate the contract and suffer significant consequences as a result.

If you terminate a contract or attempt to terminate a contract in circumstances where you are strictly not entitled to, or do so in an inappropriate manner, the other party may be entitled to treat your termination or attempted termination of the contract as a repudiation of the contract. Read the rest of this entry »

A.I. & the legal profession – should we be afraid?

Posted on August 15th, 2017

There has been significant advances in the development of Artificial Intelligence (A.I.) in recent times and a big deal made about A.I.’s impact on peoples’ jobs into the future.

So, should the legal profession be afraid? Are we going to be replaced by A.I. and our jobs become obsolete?

The short answer is no. In my humble opinion, if you subscribe to the above line of questioning, you are asking the wrong questions entirely. Read the rest of this entry »

Departure fees for the departed

Posted on July 27th, 2017

In the case of Estate of Madeline Cozma v Milstern Retirement  Living Pty Ltd t/as Golden Lifestyles [2016] NSWCATCD 56 a retirement village resident died in 2005.  Arrangements were made to sell the deceased’s legal interest in the village (she held a long lease in a unit at the time of her death) and the executors of the deceased’s estate agreed with an agent to market the unit.  Initially, the agent was linked with the village operator.   Read the rest of this entry »

Statutory wills

Posted on July 27th, 2017

The Supreme Court has power to order a Will to be made (“statutory wills”).  It is not a power used lightly but can be extremely useful.

In A Ltd v J (No 2) [2017] NSWSC 896 a 14 year old child had sustained injury and received $8 million in compensation.  She suffered from life threatening symptoms and there was a fear she might die at any time.  She clearly lacked capacity to write a Will. The child’s mother made application for a Will to be made for her.  The Will suggested by the mother gave much more of the estate to the mother than the child’s father. Read the rest of this entry »

Taking steps to keep the family together

Posted on July 27th, 2017

After the death of a loved one, family members often quarrel over a deceased’s possessions.  Jewellery is frequently fought over.  Unfortunately, the legal costs of taking such disputes to Court are prohibitive which means that whoever has the jewellery is likely to keep it.

In Tina Marie Carter v Elizabeth Margaret Law [2017] NSWSC 919 a Judge hearing a dispute over jewellery acknowledged this saying: “It is most unfortunate that a dispute involving the sum of $30,000 could not be resolved without incurring costs”.  The Judge’s view was that the costs were likely to equal the amount in dispute.  In that case, a mother died leaving her estate to her children in unequal shares.  She appointed two of her children executors of her estate. Read the rest of this entry »

Five stages of letters of administration

Posted on July 14th, 2017

A grant of letters of administration is a formal order from the Supreme Court which provides authority to the administrator(s) to carry out administration of a deceased estate in accordance with the rules of intestacy. The person appointed as administrator is usually one or more of the primary beneficiaries of the estate. Generally speaking, an application for letters of administration is dealt with by paperwork only and does not require court appearances, however it is not necessarily a simple process.

Usually, an application for letters of administration and the associated administration of an estate involves five steps. These are as follows:-  Read the rest of this entry »

The five stages of probate

Posted on July 14th, 2017

A grant of probate is a formal order from the Supreme Court which provides authority to the executor(s) appointed under a Will to carry out the administration of a deceased estate. Generally speaking, an application for probate is dealt with by paperwork only and does not require court appearances, however it is not necessarily a simple process.

Usually, an application for probate and the associated administration of an estate involves five steps. These are as follows:-

Step One

Making initial enquiries in relation to the assets and liabilities of the estate and publishing a notice of intended application for probate. Read the rest of this entry »

What is estate planning and why should I care?

Posted on July 13th, 2017

Estate planning refers to the planning and arranging, during your lifetime, for the management and disposal of your estate (i.e. assets) while you are living and after your death. It is a complex area of law and, without proper consideration, there can be significant consequences for both you and your family.

Read the rest of this entry »

Employee restraints of trade – are they enforceable?

Posted on July 12th, 2017

The case of Thinkstorm Pty Ltd v Farah [2017] NSWSC 11 recently addressed the issues of employment restraints and their enforceability in the context of employment contracts.

The facts of the case involved the employer (Thinkstorm) seeking to enforce a restraint of trade provision by way of injunction against one of its previous employees (Farah). Farah had worked for Thinkstorm as a computer engineer using the computer software known as WorkBrain and provided services to Queensland Health on behalf of Thinkstorm. Farah’s employment contract contained a generic restraint of trade clause providing that Farah must not directly or indirectly, for a period of 12 months following the termination of his employment, solicit, canvass, deal with or approach any person, firm or company for which Thinkstorm provided goods or services to at any time during the last 12 months of Farah’s employment with Thinkstorm. Immediately following Farah’s resignation from Thinkstorm, Farah accepted an employment contract with Queensland Health.  Read the rest of this entry »

When is a deposit refundable under a business sale agreement?

Posted on July 10th, 2017

The case of Sarker Trading Pty Ltd v Vanage Pty Limited [2016] NSWDC 250 recently addressed the issue of deposits and whether or not a deposit can be forfeited under a Business Sale Agreement where the Agreement is rescinded.

The facts of the case are:

  • Sarker, as purchaser, entered into a Business Sale Agreement with Vanage for the purchase of a Subway Franchise in Forestway NSW for $95,000.00 (“the Agreement“).
  • The Agreement provided that it was a condition precedent to completion that Sarker be approved as a Franchisee of Subway.
  • Sarker paid an initial deposit of $10,000 (10.5%) and a further “Security Deposit” of $75,000.00.
  • Sarker failed the relevant “Skills Test” performed by Subway required to be approved as a Franchise.
  • Sarker sought to rescind the Agreement for an inability to satisfy a condition precedent to completion.
  • Vanage asserted it was entitled to retain the deposit and the Security Deposit.

Read the rest of this entry »

Casual employees to have the right to become permanent

Posted on July 7th, 2017

On 5 July 2017, as part of its four yearly review of modern awards, the Fair Work Commission issued a decision dealing with casual employment.

A significant outcome of that decision is a recommendation that (subject to conditions) casual employees will have a right to be converted to permanent employment.

At least part of the reasoning behind the decision is that many of the “basic” entitlements of the National Employment Standards are not available to casuals. For example, where two workers were engaged by the same employer and both had worked for extended periods of time, a permanent worker would have the benefit of the National Employment Standards safety net, but a casual would not. The Fair Work Commission considered that was an unfair outcome, even though casual workers typically were paid an additional loading. The decision also took into account, amongst other things, the relative disadvantage that casual workers experienced in trying to obtain loans from financial institutions.  Read the rest of this entry »

Remaining eligible to claim when a relationship ends

Posted on July 4th, 2017

Relationships can be tricky.  Sometimes a relationship can apparently come to an end but the parties keep seeing each other and remain close.   In a recent case of Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe [2017] NSWSC 818 a male died leaving no Will.  His only family was his siblings who were due to inherit under intestacy law.   He had complained to friends that his former partner would not get “out of my life“.    Read the rest of this entry »

Anti-bullying laws and company directors

Posted on July 4th, 2017

We generally do not think of company directors as “workers”. However a recent Fair Work Commission decision says that directors are workers – at least for the purpose of its anti-bullying powers.

The anti-bullying part of the Fair Work Act says that “workers” are eligible to make an anti-bullying application. A “worker” is defined by reference to the Work, Health & Safety Act 2011 which itself lists a number of classes of activity that amount to being a “worker”. A company director is not included in the list; but the general description includes a ‘person carrying out work in any capacity for a person conducting a business or undertaking’.  Read the rest of this entry »

Changes to unfair dismissal threshold

Posted on July 4th, 2017

The “high income threshold” is the figure above which an employee is not eligible to bring a claim for unfair dismissal relief, unless their employment is covered by an award or enterprise agreement. Each year, the high income threshold for unfair dismissal claims is indexed upwards.

The components of remuneration that count towards to high income threshold are wages, money paid on a worker’s behalf (for example salary sacrifice towards non-concessional superannuation contributions; or to vehicle leases and the like) and the agreed value of non-monetary benefits (for example the provision of electronic devices).  Read the rest of this entry »

Using preliminary discovery for family provision claims

Posted on June 28th, 2017

Disputes between siblings after the death of a parent are common.  A typical basis for a dispute is an allegation that one child has helped themselves to their parent’s money in the parent’s lifetime.

On the death of a parent, accessing documentation to take the other sibling to task is difficult.   Often the sibling has no legal authority to ask for information .  In Viljoen v Hayes [2017] NSWSC 801 a sister requested copies of bank statements belonging to her deceased father for the purpose of finding out what had happened to the proceeds of sale of her father’s property in his lifetime.  The brother declined to produce copies.  Read the rest of this entry »

Can I have a copy of the Will?

Posted on June 28th, 2017

When a person makes a Will he or she is not obliged to show the Will to anyone. Some people do, some people don’t. However, after the Will maker has died, certain people are entitled to a copy of the Will as provided for in Section 54 of the Succession Act 2006. Those people who are entitled to a copy are:- 

 

 

Read the rest of this entry »

Damage claims for repairs when leasing – Part Two

Posted on June 28th, 2017

The NSW Court of Appeal case, Ellis’s Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20, is a particularly interesting case as it addresses two separate but interesting issues, being:

  1. What is the correct method of assessment of damages under a Lease for a breach of painting and repairing covenants? and
  2. When a party may make an application to appeal from a Judgment of the District Court for amounts under $100,000.00.

The facts of the case together with the measure of damages have been discussed in Part 1 of this series of articles.  Read the rest of this entry »

Damage claims for repairs when leasing – Part One

Posted on June 28th, 2017

The NSW Court of Appeal case, Ellis’s Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20, is a particularly interesting case, as it addresses two separate but interesting issues, being:

  1. What is the correct method of assessment of damages under a Lease for a breach of painting and repairing covenants? and
  2. When a party may make an application to appeal from a Judgment of the District Court for amounts under $100,000.00.

We will address these two issues in two parts over two separate articles. Read the rest of this entry »