The Duty of Banks to Protect Borrowers
It is not widely understood that although banks and other lenders are entitled to advance their own commercial interests in making loans; they also have obligations to borrowers which, if breached, might result in a loan agreement being declared void.
A recent NSW Supreme Court case of Satchithanantham illustrates one aspect of the duty owed to borrowers.
The case was factually complex but, in essence, the borrower, Mrs S, was prevailed upon by her (bankrupt) husband to take out a loan, secured by mortgage on the family home. The Court held that when the loan application was signed, the bank officer involved did not make adequate enquiry about the stated purpose of the loan or as to Mrs S’s capacity to repay the loan.
As it happened, the Court also held that Mrs S had been deceived (by her husband) into believing the loan was an ‘ordinary’ home loan for a specific amount – in fact it was a line of credit for a substantially greater amount and which could be cancelled at any time whether or not repayments were in default.
Contesting Wills – The Time has Changed
Laws changes relating to contesting Wills.
Chapter 3 of the Succession Act came into effect on 1 March 2009 and replaces the Family Provisions Act. It has introduced changes in respect of Court proceedings involving a contesting Wills. Previously an eligible person, being a person who could contest the Will of a deceased person had a period of 18 months from the date of death in which to commence proceedings seeking orders for provision out of the Will of the deceased. However, in respect of the estates of persons dying on or after 1 March 2009, a claim by an eligible person must be made within 12 months of the date of death.
Who can contest a Will?
Section 57 of the Succession Act details the category of persons who can contest a Will and has added a category being “a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death”.
For example, an unpaid live-in carer may now be a person eligible to make a claim in the estate of a deceased person if adequate provision has not been made for the carer, in the Will. Of course, the fact a person is an “eligible person”: under the legislation does not mean they will automatically succeed in proceedings to contest the Will.
Property Law – Compulsorily Acquired Land Claiming Loss of Profits
This Property Law article has been reproduced with permission from the Law Society of New South Wales.
Claims for compensation are often made not only by landowners but also by businesses which operate on acquired land.
Many state authorities have the power to compulsorily acquire land for public purposes. The law ensures that compensation is paid for the market value of the acquired land and for ‘disturbance’ to the dispossessed owner.
An ‘owner’, for the purposes of the law, means any person who has an “interest in the land”, which would include, in most cases, any business operating from the land with a lease or similar arrangement. Some public works may also have a short-term impact on a business’ profits.
Name calling can hurt…the hip pocket!
Calling a grandfather a “paedophile” within the hearing of four (4) people, in the context of a Family Law dispute over arrangements for a small child, has cost the child’s grandmother $30,000.00 in damages plus interest and Court costs in a decision of the NSW District Court handed down in October 2008.
The maternal grandmother of a 2 year old boy was ordered to pay the money to the paternal grandfather after the Court found that telling the boy’s paternal Aunt, within the hearing of the boy’s father, the father’s girlfriend and also a work colleague of the Aunt, that “You know your Dad’s a paedophile – a complete stranger came up to me in the street and told me” was defamatory of the paternal grandfather, and not merely “vulgar abuse”.
The Judge said that the allegation that the paternal grandfather is a paedophile “is at the top of the range in terms of seriousness in relation to defamatory meaning”. The Judge said that in the context of a family dispute about the arrangements for the child “an allegation of paedophilia about any member of the family was highly inflammatory and likely to cause ordinary right thinking members of the community to think less of such a person”.
Child Support – What’s your income?
The definition of “income” for the purposes of calculating of child support will change from 1 July 2009.
The effect of the changes is that before the parent’s ‘child support income‘ is calculated, a parent’s ‘adjustable taxable income’ will also include:-
- Reportable superannuation contributions – including salary sacrificed superannuation or contributions made by the parent personally or their employer (above the minimum contributions an employer must make on an employee’s behalf); and
- Total net investment losses – for example from rental property or financial investment income.