Family Law Property Alert #2: Commercial Investment, Joint Tenancy & Family Law
David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
When is there a common intention between family members to sever a joint tenancy in relation to investment in a commercial property?
The appeals division of the Family Court had to consider that question in Roda and Ors & Roda and Anor [2013] FamCAFC 27 (11 March 2013) when deciding whether half of a commercial property would be included in a Family Law property pool.
In 1995, a business owner (the father), with power of attorney over the financial affairs of his son, purchased a commercial property adjacent to his business premises in the names of his son and his wife (the mother) as joint tenants. The purchase price of $552,000 was funded by finance as to the sum of $300,000 and the balance as to half each from accounts the father administered for the son and accounts in the father and mother’s names. The father initially made the purchase without the knowledge of his son or the mother.
In 2000, the mother died. In the absence of a severance of joint tenancy, the son would take sole ownership of the commercial property owned as joint tenants, by survivorship. Read the rest of this entry »
Earning Capacity After Injury
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
An issue that frequently arises in personal injury claims, is the extent of the injured person’s ‘residual earning capacity’. That is, what paid work can they now do, and earn from? Often the injured person has only a fraction of their pre injury earning capacity, because of their ongoing disabilities .
In Mead v Kerney in the NSW Court of Appeal dealt with just such an issue. Before his accident Mr Mead lived at Kandos in central western New South Wales. He worked for Telstra and travelled extensively for work. He also managed his family’s, and his own, beef cattle properties near Kandos. After his accident the Court held he had a “theoretical earning capacity of 40%” of what he earned before the accident. However it also concluded that, in practice, he would be unable to exercise that earning capacity and therefore should be compensated as if he could not earn at all. The employer appealed against that finding but was unsuccessful. Read the rest of this entry »
When is an Employer’s Policy a Contractual Term?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
Disputes often arise, in relation to employment contracts, about whether “general policies” of the employer form part of the contract itself. For example, if the employer has a “policy” relating to payment, or redeployment, in the event of redundancy, does that policy form part of the contract such that, if the employer does not follow it, the worker is entitled to damages for breach of contract?
The Federal Court recently considered that issue in Barker v Commonwealth Bank. Amongst other arguments, Mr Barker said the CBA breached its own redeployment and redundancy policy, which was an express part of his contract and that he was entitled to damages for the breach. Read the rest of this entry »
Summary Dismissal and Long Service Leave
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The NSW Supreme Court recently dealt with a case where an employee had been dismissed for alleged serious and wilful misconduct. The case related not to the fact of his dismissal, but whether he was entitled to pro rata long service leave (LSL). In NSW workers are generally entitled to LSL after 10 years continuous service. If employed for between 5 – 10 years, and the employer terminates for “any reason other than the workers serious and wilful misconduct”, pro rata LSL is also payable. Read the rest of this entry »
Mortgage Disputes – A Sting in the Tail
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
ANZ made two loans to the same family, secured by mortgages over two different properties. A dispute arose in relation to the second loan, which ANZ said was in default. It commenced proceedings. Part of the borrower’s defence was that ANZ had wrongfully withheld money that should have been advanced under the first loan; that this money would have prevented the second loan going into default; and that ANZ therefore could not sue on the second loan contract. The borrowers also threatened to cross claim against ANZ for breach of the first loan. Read the rest of this entry »