Total and permanent disability insurance
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Many Australians now have Total and Permanent Disability Insurance (TPD), particularly self employed individuals. Commonly, TPD is arranged through a superannuation fund and both the fund trustee and the insurer have to be satisfied of an entitlement to a policy benefit before it will be paid.
In Banovic v United Super Pty Ltd [2014] NSW SC 1470, a manual labourer who injured an arm made a claim for a TPD benefit. Eligibility depended on him proving that he was unlikely to ever be able to engage in “any” occupation for which he was suited, by reason of ‘education, training or experience’. The medical evidence showed he would never return to heavy labouring; but the claim was declined on the basis that there were other jobs, that were less physically demanding, that Mr Banovic could still perform. Read the rest of this entry »
The vexed question of hire car costs
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Imagine your car is involved in a crash and is off the road for an extended period. You need that car for your day to day activities such as going to work, taking the kids to school and so on. You hire a replacement vehicle while your car is being repaired and then try to recover the hiring costs from the driver at fault, or their insurer. Can you recover the whole of the hiring cost, or will you be left out of pocket?
Because the dollar value of claims of this kind is relatively small, decided cases are often in the Local Court rather than in superior Courts. Local Court decisions (particularly in its Small Claims division) do not have the same precedent value as, say, a Court of Appeal decision, but they can still be instructive. Read the rest of this entry »
SMSF & Family Law: Be alert!
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
New laws applying to SMSF contraventions commenced after 1 July 2014 and imposed administrative penalties, education directions and rectification directions on defaulting trustees. Trustees can be personally liable for penalties of up to $10,200 per breach and may be directed by the ATO to rectify the contravention and undertake an SMSF education course.
If your relationship has broken down and you have an SMSF with your ex partner/spouse then be on notice that your responsibilities as a trustee or trustee director continue until your SMSF is wound up, or you have rolled your interest out of the fund into some other complying Fund and resigned as a director/trustee. You are therefore still at risk and need to act with care and diligence. Read the rest of this entry »
Do not rely on an informal will
By Michael McGrath
Michael McGrath is a Director at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team.
A recent decision of the Supreme Court of NSW serves as a timely reminder of the importance of having a legally valid Will and not relying on an informal document to carry out your wishes on death.
Under the Succession Act, the Court can recognise a document which appears to contain a deceased’s wishes as their Will, notwithstanding that all formal requirements have not been met. The Court must be satisfied however that the deceased intended the informal document to be their Will.
In the case of Burge v Burge [2014] NSWSC 1772, the deceased had previously made a legally valid Will with his solicitor in 1983, under which his spouse was his sole beneficiary. In 2007, the deceased made handwritten alterations to an unexecuted copy of his 1983 Will, including amending the sole beneficiary to now be his son. He initialled next to the changes and at the foot of the document, inserted the date and signed his name. His signature was not however witnessed as required for a legally valid Will.
The deceased’s spouse sought to administer the estate under the terms of the 1983 Will under which she was the sole beneficiary. The deceased’s son however sought an order that the amendments made in 2007 constituted the deceased’s informal Will and that the estate should therefore be administered under the terms of the 2007 informal Will, under which he was the sole beneficiary.
After much legal argument, the Court ultimately held the amendments made in 2007 did not constitute the deceased’s informal Will and therefore the estate was administered in accordance with the 1983 Will. The Court found that having previously executed a legally valid Will, the deceased would have been aware of the requirements for a legally valid Will and there was no reason that he couldn’t have arranged to make a new Will which complied with these legal requirements prior to his death in 2013. In the absence of other evidence as to the deceased’s intentions, the Court was not satisfied that the deceased intended the amendments made in 2007 to constitute his Will.
Michael McGrath is a Director at Mullane & Lindsay, and practises extensively in Commercial, Property & Estates Law. If you require any assistance in these areas please contact Michael McGrath or contact our Newcastle office.
Have you jointly guaranteed a bank debt?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
On 11 February 2015, the High Court delivered judgement in a “co-guarantor” case. Put simply, two individuals had guaranteed a bank debt. The bank sued and one guarantor (G1) settled with the bank for less than 50% of the debt. The bank recovered the balance from the other guarantor (G2)(who then effectively paid more than 50% of the debt). G2 then sued G1, on the basis that joint guarantors have a right of contribution against one another – with the intent that they share equally in any guaranteed loss. G1 defended, arguing that the prior settlement with the bank meant a contribution claim could not be pursued.
Does your self managed superfund comply with its obligations?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Self managed superannuation funds (SMSF’s) are a fact of life in Australia. On some measures, they collectively hold much greater wealth than either industry or retail funds, although many of them are relatively small in terms of the wealth they control. Despite that, SMSF trustees must comply with their trustee obligations, including under the Superannuation Industry (Supervision) Act 1993 (‘SIS Act’) or they risk significant consequences – both for the SMSF and for themselves personally. Read the rest of this entry »