Living apart together
by Rose Laffan
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law
Traditionally, people have been categorised as ‘married’ or ‘single’. Then sometime last century along came the ‘de facto’ concept.
The categorisation of a relationship is important as the Family Law Act sets out the legal confines of finalising financial matters following the breakdown of a de facto relationship using considerations very similar to those that apply to married couples.
Deciding if a relationship is a de facto relationship is fairly easy to do where a couple are cohabitating in a long-term committed relationship and they have intermingled their finances. But there is an increasing emergence of a new type of relationship – those who are ‘living apart together’ – that may fall within the definition of a de facto relationship.
Generally speaking ‘living apart together’ relationships involve a couple who are in a relationship but maintain separate residences. This may be due to circumstances, such as working interstate. But it can also result from an ongoing commitment to children or grandchildren from a prior relationship.
There can be an assumption that living apart together will shield wealth or assets held at the beginning of the relationship from the other partner should that relationship breakdown. However there is an increasing amount of litigation which may give pause.
Firstly, the Court has, in several matters, stated that the parties’ own view of the nature of the relationship is not determinative. Secondly, the Court has said it is important to look at the nature of the union rather than how it manifests itself.
Rose Laffan 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 Rose Laffan to arrange a consultation or contact our Newcastle office.
Pre-litigation offers of compromise
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The NSW Supreme Court recently considered a costs application based on a pre-litigation settlement offer. The short facts were that a broken water pipe, for which the defendant was responsible, caused damage to the plaintiff’s family home. The dispute ultimately resulted in litigation, which settled prior to hearing. About 3 months before litigating, the plaintiff sent a written offer to compromise her claim. The offer, expressed to be open for 14 days, was for less than the amount the defendant later agreed to pay to settle the case.
The Court was asked to award indemnity costs, rather than ‘ordinary’ costs. The defendant accepted that the pre-litigation offer was a genuine attempt at compromise. However it submitted that, because the offer predated the filing of a Statement of Claim by 3 months, the defendant did not have a proper understanding of the legal and factual ‘underpinnings’ of the plaintiff’s claim; that when the offer was made there were still real questions about who bore legal liability and the amount of damages; and that the offer was open only for an unreasonably short period [6 – 9].
Costs consequences of developments in the law
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
In Richardson v Oracle Corporation Australia Pty Limited [2014] 312 ALR 285 the Full Court of the Federal Court upheld the applicant’s claim that she had been sexually harassed in the workplace and very significantly increased the amount of general damages that had initially been awarded by the trial judge, from $18,000.00 to $130,000.00. The case is widely regarded as having ‘shifted the goal posts’ in terms of the amount of general damages that is now considered appropriate in sexual harassment claims.
The Court subsequently had to determine whether the applicant was entitled to pre-judgment interest on the amended damages (this was awarded without opposition); and whether the applicant was entitled to indemnity costs based on the respondent’s non–acceptance of an offer to settle the claim in 2010 for $106,500.00, plus interest and costs. The offer was made shortly prior to the trial at which she was initially awarded $18,000.00; however the offer was for significantly less than the amount of damages which the Full Court ultimately awarded.
Bullying and costs
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The Fair Work Commission (FWC) has recently issued a new decision under the “anti-bullying” provisions of the Fair Work Act (FWA); relating to costs. It gives some comfort to employers forced to deal with unreasonable claims.
A former worker alleged he had been bullied at work and brought an application; however the application was not filed until 6 days after the employment relationship was terminated. The FWC held that there was no reasonable prospect of that relationship resuming. The worker did not prosecute his application, effectively or at all, and did not appear at the hearing. The application was dismissed and there was no finding made as to whether, or not, past conduct in the nature of bullying had occurred.
Breach of contracts for the sale of land – ‘innocent’ vendors beware!
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
A company contracted to purchase a large parcel of land at Jindabyne. Two individuals gave a guarantee that the company would complete the purchase. It did not. The vendor terminated the contract by reason of the purchaser’s repudiation and ultimately resold the property for a substantially lower amount (the original sale price was $7.21m; the resale price was $3.30m).
At trial, the vendor succeeded in a claim for damages calculated as the difference between the original contract price, and the ultimate resale price. Significantly, the resale occurred 13 months after the original contract. Neither the defaulting purchaser nor the guarantors participated in the initial trial but, after judgment was entered, one of the guarantors appealed.
Restraint of trade in employment contracts
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
A former manager of a food wholesaler resigned and took employment with a competitor. The former employer BFF, sought to enforce a restraint of trade (ROT) clause in the employment contract. The two central issues to be determined were whether the clause was so uncertain that it was void; and secondly whether a particular aspect of the clause was unreasonable and therefore unenforceable.
Because of the way in which the clause was drawn, there were 8,190 separate covenants by the manager relating to his post employment activities. It was this factor that was key to whether the ROT clause was void for uncertainty. After reviewing various Queensland and NSW cases the Tasmanian Supreme Court held that the clause was not uncertain. It took the view that despite the number of covenants, the drafting technique was permissible and that each covenant could be independently understood.
Joint tenants or tenants in common? – An important consideration when purchasing property
by Lana Black
Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.
When two or more people purchase a property it is necessary for them to decide, at the time of entering into the Contract, whether to purchase the property as joint tenants or tenants in common. A mistake can be expensive to rectify and if left unrectified can have far reaching effects.
Joint tenants
If a property is held by two or more people as joint tenants then the owners own the whole property jointly (and each can therefore only have an equal share of the property). The property can only be dealt with as a whole and in the event of the death of one of the owners it passes to the surviving joint tenant, irrespective of the terms of the Will of the deceased joint tenant.
Selling a property with a swimming or spa pool
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
From 29 April 2015, if a property is sold which has a swimming pool, then a valid swimming pool certificate of compliance (or an occupation certificate issued within the last 3 years) must be attached to the contract. Failure to do so will allow the purchaser to rescind the contract within 14 days of the date of exchange of contracts (unless settlement has already occurred).
A swimming pool means an excavation, structure or vessel that is capable of being filled with water to a depth greater than 300mm and that is solely or principally used or that is designed, manufactured or adapted to be solely or principally used for the purpose of swimming, wading, paddling or any other human aquatic activity.
Therefore, spa pools are included, however spa baths are not. Read the rest of this entry »
When can a carer contest a Will?
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
Section 57(1)(f) of the Succession Act states that a person with whom the deceased person was living in a close personal relationship at the time of the deceased’s death is an eligible person who may commence proceedings seeking provision out of the estate of the deceased person.
This section means that in some circumstances the carer of the deceased person can make a claim if he / she has not been included as a beneficiary in the Will. A close personal relationship is a relationship (other than a marriage or defacto marriage) between 2 adult persons (whether or not related by family) who are living together, one of whom provides the other with domestic support and personal care.
The New Drink Driving Penalties – A Must Know
by Lana Black
Lana Black is a Solicitor at Mullane & Lindsay and practises primarily in Commercial & Property Law.
The current penalty provisions
The most common forms of drink driving offences are found in Section 110 of the Road Transport Act and provide it is an offence to drive a motor vehicle when there is a prescribed concentration of alcohol present in the driver’s breath or blood. For the purpose of this alert we will focus solely on the Section 110 offences.
At present, a person convicted of a drink driving offence faces two classes of penalties. The first is the penalty which is imposed by the Court under the Crimes (Sentencing Procedure) Act (such as fines, bonds and imprisonment) and the second is disqualification of the person’s driver licence. Under the current legislation it is optional for some offenders to have some of the disqualification period suspended for participation in an interlock program. Read the rest of this entry »
Reasonable living expenses and attorneys
by Felicity Wardhaugh
Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Mum is elderly and has just moved to a nursing home. She was a widow and her house is now empty. Mum has dementia but the nursing home is doing a great job of looking after her. Last week the doctor said “I would not be surprised if she did not live to a 100!” This is 20 years away. The house is likely to sell for $500,000. Her two daughters are due to inherit the house if she dies because she has left it to them in her Will. However, one daughter really needs some money now. If she could sell Mum’s house and use some of Mum’s money it would rescue her situation. Can she? Read the rest of this entry »
When can a dependant contest a Will?
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
Section 57 of the Succession Act lists the person(s) who are deemed “eligible person(s)” who can contest a Will. Included in the section is:
i. “a person who was at any particular time wholly or partly dependent on the deceased person and …. who was a member of the household of which the deceased person was a member”.
We were recently involved in a case where an elderly lady died and prior to her death for many years she was assisted by her younger sister, who did her shopping, took her to appointments and performed cleaning duties for her. The older sister had no children and was pre-deceased by her husband. She had a Will which was many years old and made no mention of the younger sister. The beneficiaries of the Will were nieces and nephews who had not visited the older sister for many years prior to her death, and certainly gave her no assistance. Read the rest of this entry »