Can you redact or obscure documents produced on subpoena?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The Western Australian Supreme Court recently dealt with a subpoena dispute. The case was about a building contract under which a builder was contractually obliged to insure the structure being built. A storm damaged the structure; and the plaintiff owner alleged that the builder had breached its obligation to arrange adequate insurance, with the result that the owner of the structure suffered a loss.
An issue in dispute was whether or not the builder had taken adequate insurance. A subpoena was issued for the builder’s policy document. It was produced by the insurer, both in full and as a partly redacted or obscured document. There was no objection to an inspection of the redacted document but there was an objection to reading the policy document “in full”. The objection was on the basis that the policy contained commercially sensitive and irrelevant (to the dispute) information. Read the rest of this entry »
What happens if I die without a Will?
by Lana Black
Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.
Where a person dies without a valid will he/she is said to have died intestate.
The Succession Act 2006 (“the Act”) contains provision as to how an estate is to be distributed in the event a person dies intestate. Generally speaking, the way an estate is to be distributed will be determined by reference to the deceased person’s circumstances at the time of death. Essentially, the Act provides that where a person dies intestate his/her estate will be distributed as follows: Read the rest of this entry »
When is smacking your child assault?
Ashleigh John is a Family Law Accredited Specialist at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law.
There is a difference of opinion between many parents about disciplining children. For many Baby Boomers and Generation X, a smack on the behind or a clip across the ear was a normal occurrence; however children of modern day parents are more likely to spend their time in the naughty corner, or having privileges such iPads, mobile telephones and television withdrawn.
Still, the occasional smack to a naughty child remains a common form of discipline in our community, so the question remains, when is a smack an assault? Read the rest of this entry »
Insurance policies – the duty of disclosure
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
All applicants for insurance cover have a duty to disclose every matter they know, or could reasonably be expected to know, might be relevant to the insurer’s decision to enter an insurance policy. That obligation now forms part of the Insurance Contracts Act, but has always been part of the common law.
The issue of disclosure was considered recently by the NSW Court of Appeal in relation to a motor vehicle property claim. Mr O’Farrell’s insured car was stolen and he made a claim. It was refused on the basis that, prior to obtaining insurance, he had failed to disclose two criminal convictions. The matter went initially to the CTTT (where the insurer was ordered to pay) then to the District Court (which reversed the CTTT decision) and finally to the Court of Appeal, which reinstated the CTTT decision. Read the rest of this entry »
Valuing a business for family law property division
by Rose Laffan
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law
The valuation of a business is a complex objective. When it is to be done for consideration of how to divide property in family law matters it is even more complex.
This is because the concept of ‘fair market value’ – the price that might be negotiated in an open market between an informed and willing buyer and an informed and not anxious seller, both acting at arm’s length – is confronted by the strategic interests that are characteristic of family law disputes.
In family law, allegations can be made that the value of the business has changed since separation. For example, one party has eroded the working capital, or that assets have now been hidden, or even that existing trade has been deliberately impaired. Read the rest of this entry »
The overlooked cornerstones of the Retail Lease Act 1994 (NSW)
by Lachlan Page
Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.
Despite the fact that the Retail Leases Act 1994 (NSW) (“the Act“) has been in operation for over 20 years, it is surprising how many Leases are non-compliant with the Act.
It is prudent for commercial business owners and, more importantly their Solicitors, to have a grasp on the cornerstones of the Act and the relevant consequences.
Preliminary Steps before entering into a Retail Lease
Prior to the parties entering into a Retail Lease: Read the rest of this entry »
A creditor, a bankrupt and a Binding Financial Agreement
by Rose Laffan
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law
The difficulties that arise in relation to enforcing a Binding Financial Agreement that provides for the division of assets and liabilities between a couple has increased following the recent decision of Grainger & Bloomfield.
In this case Ms Bloomfield obtained a judgement debt against Mrs Grainger for $2,100,000 in 2011. On 14 October 2012 a bankruptcy notice was served on Mrs Grainger. On 1 November 2012 Mr and Mrs Grainger entered into a Binding Financial Agreement that provided for Mrs Grainger to transfer her interest in a property to Mr Grainger. Mrs Grainger became a bankrupt on 7 January 2013.
Ms Bloomfield applied to the Court to set aside the Binding Financial Agreement. Ms Bloomfield was seeking that Mr Grainger transfer the property to Mrs Grainger’s Trustee in Bankruptcy or alternatively pay the Trustee the equivalent value. Read the rest of this entry »