Is it a de facto relationship?
by Rose Laffan
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law
The concept of ‘living apart together’ has come up in a few cases but the matter of Sinclair and Whittaker [2013] gives a comprehensive examination of whether there is a de facto relationship.
The parties began dating in 2002. In August 2004 the appellant moved some personal belongings in to the respondent’s flat and contributed rent. In December 2005 the parties purchased a unit, in the name of a corporate entity controlled by the appellant, with the appellant providing the deposit and stamp duty. The respondent and the corporate entity jointly borrowed monies from the appellant’s mortgage business. The parties each contributed $15,000 to purchase furniture and accessories for the unit and they shopped for those items together. Read the rest of this entry »
Do you need a testamentary trust?
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
Often the reason a Testamentary Trust is included in a Will is to enable the beneficiaries of the trust to save tax. However, a Testamentary Trust can have other benefits. If a potential beneficiary of a Will suffers from an addiction or is unable to control his or her spending then the Testator should consider paying the share that the beneficiary would otherwise have received into a trust and appointing a responsible third party as trustee of the trust. The trustee will have the power to pay part or all of the income of the trust to the beneficiary at his or her discretion. Naturally, if the trustee considers that the beneficiary is asking for money for unnecessary purposes then the trustee can refuse payments. Read the rest of this entry »
Superannuation and binding death benefit nominations
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
Many individuals or families have their own self managed superannuation funds (SMSF). Superannuation is paid after a member’s death at the discretion of the Trustee of the fund. However, if the Trust Deed creating the superannuation fund provides for a Binding Death Benefit Nomination then a member of a fund can direct the Trustee of the superannuation fund how the superannuation should be paid in the event of the member’s death. The member can remove the discretion of the Trustee. However, it is very important to ensure that the Binding Death Benefit Nomination form is valid. The recent decision of Munro v Munro in the Supreme Court of Queensland is a reminder of the care that is required. In that case Mr Munro, a retired solicitor established a self managed superannuation fund in 2004 with his wife and himself as Trustees. In 2009 he signed what purported to be a Binding Death Benefit Nomination in favour of “the Trustee of Deceased Estate”. Unfortunately, however the Nomination failed. Clause 31.2 (b) of the Trust Deed creating the superannuation fund provided that the Nomination in a Binding Death Benefit Nomination form must be in favour of one or more nominated dependents or the legal personal representative of the member. Read the rest of this entry »
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.
Under Section 57 of the Succession Act, a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death is a person eligible to make a claim under the provisions of the Succession Act 2006. A carer of the deceased can, in some circumstances, be deemed to be an eligible person. To be an eligible person the carer must live under the same roof as the deceased person. Also, the carer must not be providing services for reward. Sometimes there are circumstances where two people reside together and one of them provides services in the nature of care to the other, however the relationship does not constitute a de facto relationship. Read the rest of this entry »
Incorporating policies into employment contracts
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
A banking executive who was made redundant on the merger of two banks, has succeeded in a multi million dollar redundancy claim based on a policy he was not aware of during his employment but which, the Court said, formed part of the employment contract.
Mr James worked for AMRO prior to its merger with Royal Bank of Scotland in about 2008. AMRO’s redundancy policy allowed 4 weeks pay for each year of service, plus an “ex gratia” payment. The evidence showed that, in practice, well performing senior employees were almost invariably paid the ex gratia sum even though it was technically discretionary. Read the rest of this entry »
“myGov” and family law
by Rose Laffan
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law
A media release from the Minister of Human Services this week announced the launch of a new smart phone app called “Express Plus Child Support”.
The new app is designed to allow parents to view letters and other communications, keep track of child support payments, update their contact and account details and advise of any important changes in their circumstances. Parents can even make payments using the app.
According to the media release if registered for myGov parents can download the Express Plus Child Support app. Read the rest of this entry »
Security for payment claims – Insolvent contractors beware
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
One object of (State) security for payment legislation is so that contractors can maintain cash flow during projects. One means of achieving that object is to prevent principals on whom a claim payment is made, from arguing they have a “set off” claim against the contractor.
However the position can be different if the contractor, being a company, becomes insolvent. In the case of insolvency, the (Commonwealth) Corporations legislation specifically permits set offs against claims by insolvent companies. Read the rest of this entry »