“Off the Plan” purchases: Make sure you inspect the property
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 recently dealt with a case involving an “off the plan” purchase that resulted in the buyers acquiring a one bedroom unit when they had expected a two bedroom unit.
The confusion arose because, when contracts were originally exchanged, the plan attached to the contract referred to “Lot 44” which was a two bedroom unit. The Strata Plan was later amended and various units were renumbered. New contracts had to be exchanged as a result. The purchasers were advised by their solicitor to physically inspect the property to ensure the renumbered unit referred to in the second contract in fact had two bedrooms. The purchasers did not do so. After their purchase was completed, they realised they did not buy a two bedroom unit, and they sued their solicitor. They claimed the solicitor had an obligation to ensure they had inspected the unit before exchanging contracts. Read the rest of this entry »
Unfair Dismissal under the Fair Work Act for Economic Reasons
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
As almost everyone knows, the old ‘WorkChoices’ legislation was amended by the Rudd Labor Government. The Fair Work Act (2009) [FWA] now largely replaces it.
One significant change under the FWA relates to whether an employee can bring an unfair dismissal claim if he / she is dismissed for essentially economic reasons.
Under the Workplace Relations Act it was a defence to an unfair dismissal claim that the worker had been dismissed for “operational reasons”. This phrase was fairly broadly defined, and could include economic, technical, structural or other reasons relating to the business – even if those factors applied to only part of the employer’s business.
Under the FWA, this defence is now only available if a worker is terminated for reasons of “genuine redundancy”. The definition of genuine redundancy is substantially narrower than the old definition. An employer needs to show not only that it no longer requires the job to be performed by anyone; it must also be show that any award obligations requiring consultation about the proposed redundancy have been complied with. Further a redundancy may not be “genuine” if it can be shown the worker could have been internally re-deployed. Read the rest of this entry »
Self Managed Super Funds & Enduring Powers of Attorney
By Mark Sullivan, Director/Accredited Specialist, Mullane & Lindsay, Newcastle Office
Enduring Powers of Attorney are an important part of any succession plan, especially if you are a member of a self-managed superannuation fund (SMSF).
An Enduring Power of Attorney appoints someone to make decisions on your behalf, particularly if you are incapacitated from trauma, stroke, dementia or if you are unable to communicate for any reason.
If you are a member of a SMSF, you must generally also be a trustee or a director of its trustee company. If you lose capacity, you can no longer be a trustee or a director of the company which may mean you cannot continue as a member of the SMSF and your member balance may have to be rolled to a retail super fund. This can have significant transaction costs (such as CGT and duty), and can also lead to many practical issues. For example, the trustee may need to sell assets to make the fund liquid so it can transfer benefits to a retail fund. Read the rest of this entry »