Transfers to Defeat Creditors
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
A solicitor acted for a client in a personal injuries claim. The relationship broke down; the client went to other lawyers and the claim was eventually settled. The first solicitor’s bill was not paid.
A property owned by the client was transferred into a family trust. This all occurred shortly after the solicitor served an itemised bill of costs. Years later the client received another property, transferred from his mother for nominal value. Soon afterwards the solicitor later sued for fees, and the client also that property into the family trust. The solicitor obtained judgment against the client for unpaid fees, but there were no assets available from which to pay it.
The solicitor then applied to set aside the property transfers on grounds that they had been made to defeat creditors. The Supreme Court was comfortably satisfied that the client had acted to defeat the solicitor’s claim for unpaid costs. Each property transfer was made very shortly after a positive assertion by the solicitor of an entitlement to costs. This, coupled with the fact that each transfer was made without consideration, were significant factors in the Court’s reasoning.
Disputes Between Members of Self Managed Super Funds
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
In a recent Supreme Court action involving 2 brothers who were the sole members and trustees of a SMSF the Court heard evidence of the breakdown of the brothers’ relationship, neglect to sign trust records and the unauthorised withdrawal by one brother of sums from the SMSF that exceeded his entitlements. The Court ordered the replacement of the brother as trustee due to his breach of fiduciary duties, and that he also account for the money he withdrew from the fund without consultation.
In reaching its decision to replace the trustee the Court had regard to the interests of the beneficiaries, to the security of the trust property and to an efficient and satisfactory execution of the trust. Read the rest of this entry »
Paintball & Common Sense
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
A young girl was injured whilst playing laser tag at her older brother’s birthday party. She tripped on an exposed tree root and fractured her left elbow. The venue operator was held to be negligent and damages of $280,000.00 were ordered against it. The venue operator appealed.
Most of the appeal revolved around specific provisions of the Civil Liability Act dealing with issues such as ‘obvious risk’ and ‘recreational activities’. In a grossly simplified form, the legislation says that there is no duty to warn of ‘obvious risks’; and that if a “risk warning” is given in relation to ‘recreational activities’, there is no duty to take care.
The Court of Appeal set aside the Trial Judge’s decision. It said the risk (of tripping on a tree root in bushland) was an obvious risk. It also said that the operator had given a “risk warning” in any event. The decision reinforced an important common law principle, namely that when considering if a duty of care was owed and what precautions should have been taken to protect against it, the question always has to be looked at from the perspective a defendant and at a point in time before the risk actually occurs. Although not put in quite this way in the decision, that is because if this issue is viewed in hindsight it is always easy to say that the particular risk that caused the harm could have been avoided (in this case by removing the specific tree root that caused the fall); however when looked at prospectively, it was unreasonable to expect the game operator to eliminate each and every individual risk that might exist from playing a game in a bushland setting.
Divorces for Couples Married Longer than 20 Years Increasing
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
There have been constant changes to the Family Law Act since 1975. Issues relating to parenting, divorce, family counselling and mediation, financial agreements, maintenance and the resolution of property disputes between married spouses, de facto spouses and same sex partners all fall within its jurisdiction. It is influenced by, and has influenced social trends. The Court’s statistics are monitored and the subject of regular report and comment.
The Australian Institute of Family Studies’ report entitled Working Out Relationships reveals an increase in the number of couples divorcing after long periods of marriage. The proportion of divorces ending marriages that lasted longer than twenty years has increased from 13% in 1990 to 28% in 2011. Possible explanations are attributed to changing social norms about remaining in unhappy marriages. There is now far less social stigma about ending a marriage. Women are less reliant on men for their financial stability. Increasing numbers of parents are delaying divorce until all of their children are at least 18 years old. In such scenarios issues of property settlement, spouse support and superannuation splitting become relevant.
Divorces for couples whose marriages are less than ten years duration remain the most common statistical example of marriage breakdown. In such matters it is usual for spouses to require assistance with parenting issues, child support and property settlement.
Mark Sullivan is a Director at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact Mark Sullivan to arrange a consultation or contact our Newcastle office.