Another Shaggy Dog Story
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The NSW Court of Appeal has recently dealt with a claim arising from a dog bite that involved the Companion Animals Act(CAA) Briefly, a dog, Jake, strayed into an adjoining property. He became involved in a fight with a dog that lived on that property. Jake’s owner went onto the adjoining property to retrieve him and was bitten by the neighbour’s dog. She sued in negligence and under Section 25 of the CAA which, in general terms, makes the owner of a dog liable in damages if the dog attacks or wounds another person. There is an exception to liability if the attack occurs on property normally occupied by the dog, and the person who was bitten was not lawfully on the property. That was the issue which engaged the Court.
It found Jake’s owner was not lawfully on the adjoining property. That was partly because she had not taken reasonable precaution to prevent Jake escaping from his own yard (which is itself an offence under Section 12 of the CAA) and partly because under the general law, the owner was negligent for allowing Jake to wander unrestrained in an unfenced yard from which he could readily escape.
Borrowing by Self Managed Superannuation Funds
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
For several years, self managed superannuation funds have been permitted to borrow money to assist with the purchase of Real Estate. However if a Self Managed Superannuation Fund (SMSF) proposes borrowing then the trustee of the SMSF must be careful.
The property purchased by the SMSF must be held by a bare trustee which holds the property as trustee for the SMSF (which is the beneficial owner of the property). The documentation relating to the purchase of the property by the bare trustee must be in place before the property is purchased. The security for the loan is the property and the mortgage is a special type of mortgage referred to as “limited recourse”. This means that if the SMSF defaults with its repayments then the lender can only sell the property to recover the loan. Naturally, the margin between the loan and the value of the property being purchased is usually greater when a property is purchased by a SMSF.
Effect of Reconciliation on a 12 month Separation
Ashleigh John is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
Since 1975 the only ground for a divorce has been that the marriage has broken down irreconcilably. This is proved by the spouses living separately and apart for a continuous period of 12 months.
However, throughout the Family Law Act there are a number of provisions which seek to encourage reconciliation. One such provision is s.50, which applies to divorce.
Section 50 of the Family Law Act makes provision for a circumstance where:
- A husband and wife have separated;
- During the period of separation they recommence living together as husband and wife on one occasion; and
- Within three months of recommencing their relationship they separate again and no longer live as husband and wife.
In such a circumstance the periods of separation before and after the reconciliation can be aggregated as if they were one continuous period. However, the period that the spouses were living together again does not form part of the 12 month period.
Ashleigh John is a Senior Solicitor at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact Ashleigh John to arrange a consultation or contact our Newcastle office.
Driving Home from the Work Christmas Party Intoxicated
by Kristy Nunn
Kristy Nunn is a Director at Mullane & Lindsay in Newcastle and practices in our Dispute Resolution and Litigation Team.
In the decision of Scharrer v The Redrock Co Pty Ltd the New South Wales Court of Appeal considered whether an employee who drove home intoxicated after the work Christmas party was acting in the course of her employment.
Ms Scharrer suffered serious and permanent disablement as a result of an injury incurred when she crashed her employer’s motor vehicle in the early hours of 15 December 2001, following a night spent at her employer’s Christmas party in Sussex Street, Sydney.
It was not in dispute in the case that Ms Scharrer’s attendance at the Christmas party was in the course of her employment. The Christmas party commenced at 7.00 pm on 14 December 2001 and she left the party at 2.00 am on 15 December 2001. At about 3.00 am she lost control of her car and collided with a rock wall on the side of Epping Road. She suffered serious injury. On testing after the crash, she returned a blood alcohol reading of 0.124.
Ms Scharrer claimed weekly workers compensation benefits which were paid by the employer’s insurer. A dispute arose in respect of her ongoing entitlements. Ms Scharrer made an application to the Workers Compensation Commission for compensation for her injuries.