Contractual Penalties – a change in landscape
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The concept of a “penalty” in Australian law is relatively easy to state, but often difficult to apply in practice. In essence, where a contractual provision (or some collateral arrangement) imposes an obligation for breach of contract, that is disproportionate to the actual cost or loss resulting from the breach, it can be set aside as a “penalty”.
Take a simple example of a contract to purchase a car for $10,000.00. It has a condition that if the purchasers do not complete the purchase on a specified date they must pay $1,000.00 per day, in addition to the price, until settlement occurs. That additional sum is obviously disproportionate to the vendor’s actual cost of delaying settlement. By contrast, a provision that is a genuine pre estimate of the injured party’s costs or losses will not be a “penalty”. Using the ‘sale of a car’ scenario above, if the ‘price’ for a delayed settlement was set by reference to the vendor’s actual holding costs (for example if the vendor’s loan repayment was $10 per day and the ‘price’ of delay was also $10 per day) it can readily be seen that the additional payment is a genuine pre-estimate of loss. Read the rest of this entry »
Selling with a swimming pool – beware
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
If Contracts exchange for the sale of a property with a swimming pool, after 29 April 2016, the Vendor must attach one of the following prescribed documents to the Contract:
- A valid Certificate of Compliance issued by either the municipal council, or an accredited certifier; or
- A relevant Occupation Certificate and evidence that the swimming pool is registered; or
- A Certificate of Non-Compliance.
If one of the above documents is not attached to the Contract at the time of exchange, then the purchaser has a right to rescind the Contract within 14 days after exchange of Contracts. If the purchaser rescinds, the Contract will be at an end and the deposit paid by the purchaser at the time of exchange of Contracts must be refunded to the purchaser. Read the rest of this entry »
Appealing orders made by consent
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and
Matrimonial Law
In the case of Charring & Bunt the Appeal Court of the Family Court set out a clear annunciation of the issues involved in attempting to appeal parenting orders that were made by the consent of both parties.
Justice Ryan stated “the fact that an order is made by consent does not make the order any different to an order made after a hearing.” Her Honour went on to say that there was one important qualification however: “the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party’s right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence or the absence of jurisdiction.” Read the rest of this entry »
Security of Payments Act- Adjudication Process
Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.
This article is part of a series of articles that provides an overview of the Security of Payments Act Regime in NSW and explores the Adjudication process under the Building and Construction Industry Security of Payment Act 1999 NSW (“the Act“).
As discussed in my previous article, the adjudication process under the Act is an extremely useful tool in assisting contractors and subcontractors to enforce payments in the building and construction industry.
When a party is entitled to make an Adjudication Application, the Act requires that the application must:
- be made in writing,
- be made to an authorised nominating authority,
- identify the Payment Claim and Payment Schedule (if any) to which it relates,
- contain relevant submissions and supporting material, and
- be accompanied by the relevant application fee.
To review or not to review, that is the question
Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.
Often something which is overlooked when it comes to estate planning is review of a person’s Will. It is our experience that after five or more years, it is important to review a Will to make sure it remains suitable for a person’s current circumstances. Any number of situations may arise which can lead to a need to revise a Will. These include:-
- The death of a family member who is a beneficiary or who has been appointed as an executor;
- Family law proceedings by a testator (the person making the Will), or a person named in the Will;
- New marriage or a de facto relationship entered into since the last Will was made;
- The sale of assets which were left as specific gifts in a Will;
- The birth of new family members;
- The establishment of a self-managed Super Fund or changes in Superannuation arrangements (which are not strictly part of the assets left in a Will, but need to be considered as a part of estate planning); Read the rest of this entry »
Demotions and dismissals – who proves what?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The Full Bench of the Fair Work Commission recently considered an appeal concerning whether or not an employee had been “demoted”; and whether any “demotion” amounted to a dismissal.
On the particular facts, the Full Bench (agreeing with the Commissioner’s primary decision) said that there had not been a demotion. Rather, the worker’s duties had been reallocated resulting in slightly lower pay and different conditions; but this was permissible under the terms of his employment agreement. Read the rest of this entry »
Powers of Attorney…Super Powers?
Katie Thompson is a Solicitor at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
If you are considering appointing a power of attorney or if you have been appointed as someone’s attorney it is important that you understand the rights and responsibilities associated with this.
An attorney may be given general powers to act on a principal’s behalf, allowing the attorney to undertake any activity and enter into any transaction. This means that an attorney may operate bank accounts; manage and pay bills; and lease or sell property on behalf of the principal. Read the rest of this entry »
Child support agreement between Australia and New Zealand
by Rose Laffan
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and
Matrimonial Law
In 2000 an agreement was signed between Australia and New Zealand which sought to facilitate the recognition and enforcement of child support decisions between the two countries.
A fundamental premise of the agreement is that while child support assessments, liabilities and orders of one country can be subjected to applications in the other country, any orders made in the second country can only become binding if endorsed by the originating country.
The recent decision by the Full Court of the Family Court in Child Support Registrar & Higgins [2016] confirmed this. Read the rest of this entry »
Security of Payment Act – When to adjudicate?
Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.
This article is part of a series of articles that provides an overview of the Security of Payments Act Regime in NSW and explores when you can adjudicate under the Building and Construction Industry Security of Payment Act 1999 NSW (“the Act“).
The Act provides the ability for a party to have a dispute adjudicated by an Adjudicator and a Determination made that is capable of registration as a Judgment debt and enforcement by the Courts. The benefit of the adjudication process is that an enforceable decision can be obtained within weeks of a party making an Application for adjudication. This is in keeping with the underlying purpose of the Act designed to ensure that contractors and subcontractors receive payment in a timely manner. Read the rest of this entry »