Life estates: who bears the costs?
If you own a property and want to provide a spouse or other person with security of tenure for life, allowing them to live in your property after you die, you may wish to consider creating a life estate when making your will. A life estate creates the right to reside in the property and/or receive income from it. However, a beneficiary of a life estate cannot pass on any rights or interest in the property in their will.
Unless it is stipulated otherwise, where a life estate is created, the occupant of the property is liable for outgoings of a recurrent but not a capital nature. This means that the occupant will be required to meet regular expenditure associated with current use and enjoyment of the property, but not improvements. Read the rest of this entry »
Passing on passwords, memories and important information
What happens to your ‘online’ accounts when you die? It can be distressing to think about “living on” in Facebook, for example, but it can be a source of comfort for your family. Providers of digital services are sensitive about their legal responsibility to their members. Google, for example, explains that “[u]sers have a strong and reasonable expectation of privacy and security when using Google’s products. We believe that the trust placed in us by our users requires us to make sure that their information is safe, even in the event of their death.” Google give users the option to have their account disabled if it has not been used for a certain period of time and to appoint a “trusted” advisor who can gain access to the account or only certain parts of it, such as emails. Read the rest of this entry »
Vexatious great-grandparents
The Full Court of the Family Court, in the recent case of Mankiewicz and Anor & Swallow, dismissed an appeal by the maternal great-grandparents against a decision to dismiss their application to spend time with their four great-grandchildren and a declaration that they are vexatious litigants.
The trial judge dismissed the great-grandparents application to spend time with their great-grandchildren on the basis that there had not been a material change in circumstances since a summary dismissal of a similar application in 2009, and found, on the Court’s own motion, that the application was an abuse of process as the great-grandparents were acting in concert with their son (the maternal grandfather) and therefore declared the great-grandparents vexatious litigants. Read the rest of this entry »
Who bears costs when a case is settled?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The NSW Court of Appeal recently had to consider whether costs should be awarded, in circumstances where a plaintiff accepted a settlement offer from a defendant which had been made prior to a hearing; but which was not accepted until after the hearing and when the Court’s judgment was reserved. The defendant’s offer was explicitly said to be “exclusive of costs”. 
The defendants later made an application that they be awarded the costs of proceeding, and the plaintiff contended that was a breach of the agreement, that entitled the plaintiff to damages. In this context it must be remembered that an agreement to settle litigation is a form of contract, and that usual contractual remedies are available for any breach of it. The Court rejected the plaintiff’s claim that the words “exclusive of costs” meant that it was an implied term of the contract that each party would bear their own costs. Rather, consistent with decisions made in relation to formal Offers of Compromise, the phrase meant the settlement agreement did not deal with costs at all. The issue had to be dealt with under the general law rather than under the terms of a settlement contract. Read the rest of this entry »
The Importance Of Proving That Damage Was ‘Caused’ By Negligence
It is a basic principle of Australian law that for somebody to recover damages they have to prove that the injury they suffered was ’caused’ by the blameworthy conduct of someone else. The principle does not only apply to claims for personal injuries, but is usefully illustrated by a recent NSW Court of Appeal case involving a personal injury claim.
A 10 year old child suffered personal injury whilst playing a game of “table soccer” at her school, on an ashphalt basketball court. The game involved ‘runners’ attempting to get from one end of the court to the other; through several lines of static defenders. Once a runner was tagged, they became a defender. At the time of the injury, the child was one of about 8 remaining runners. She collided with another runner and fell onto her right wrist and hip. Various allegations were made against the school, including that the child had not been given proper safety instructions; that the supervising teacher had not been keeping a proper lookout; and that the game should not have been played on an ashphalt surface. Read the rest of this entry »
Extending Time To Pay – Are There Risks?
Particularly amongst family members, or close friends, it is not uncommon for money to be loaned under oral agreements. In its simplest form, it might be an agreement between friends to “spot” $50.00 until payday. In more sophisticated contexts, it may be an agreement to loan substantial amounts of money simply on the promise that the borrower will repay that amount, with or without interest. 
The NSW Court of Appeal recently looked at a situation involving an original oral loan agreement; and a claim the repayment date had later been varied, also by oral agreement.
Do I need to change my Will if my address changes?
Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.
A common question which is asked when discussing estate planning is whether a Will needs to be changed/updated as a result of changing addresses. The address of a testator (the person making the Will) is usually included in the Will for identification purposes. Having said this, it is only necessary that the address be current as at the date of making the Will. If the testator moves residence it is not necessary for the Will to be updated where the address is included purely for identification purposes. Read the rest of this entry »
Do I need a Shareholders Agreement?
Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.
When setting up a business one of the simplest and most selected structures is the registration of a company.
Whilst business owners are becoming more and more savvy and often no longer require their Solicitor or Accountant to register a company for them, it is concerning the number of business owners that stop the set up process after registration of the company.
One of the most important documents you should have when you operate a company structure is a Shareholders Agreement. Read the rest of this entry »
Dealing with Defects? Don’t Delay!
Katie Thompson is a Solicitor at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation.
Your guide to home warranty insurance time limits.
The Home Building Act 1989 (The Act) requires builders and tradespeople to be licensed for the work that they do, and to have insurance and proper contracts in place for most jobs. Most residential building works must have home warranty insurance. Home warranty insurance provides insurance cover in respect of loss only if a claim is made to the insurer during the period of insurance. The period of cover depends on the type of loss that occurs. 
For non-completion of work, the Act requires insurance cover for a period of a least 12 months after the failure to commence, or cessation of the work. This means that the insurer must be notified within 12 months for a claim based on non-completion.
Were the judges comments biased?
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and
Matrimonial Law
In the recent case of Bowcott & Welling the mother brought an application for the trial judge to disqualify himself from hearing the remainder of the trial, as the mother alleged there was an apprehension of bias.
The trial judge dismissed the application, but stayed the remainder of the trial while the mother appealed his decision to dismiss the application to the Full Court. Read the rest of this entry »
Copyright vs Privacy
Katie Thompson is a Solicitor at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
At the end of last year, the Dallas Buyers Club LLC v ii Net Limited decision was handed down by the Federal Court of Australia. The case has been described as a legal battle between copyright and privacy.
It involved an application for preliminary discovery by the copyright owners of the Dallas Buyers Club film against six ISPs. Dallas Buyers Club LLC (DBC) were trying to force the ISP’s to provide them with the details of 4726 account holders who they believed had illegally downloaded the film so they could seek damages. Read the rest of this entry »
Amendments to Surrogacy Laws
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and
Matrimonial Law
In December 2015 the Federal Parliament passed the Family Law Amendment (Arbitration and Other Measures) Rule 2015. These amendments to the Family Law Act are, in part, in relation to how the Family Court is to determine surrogacy proceedings, and in particular the evidence that is required to be presented to the Court in such proceedings. Read the rest of this entry »
Security of Payments Act – how do I enforce an adjudication?
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 how to enforce and Adjudication Determination under the Building and Construction Industry Security of Payment Act 1999 NSW (“the Act“).
When an Adjudicator has made a decision in relation to an Adjudication Application the Adjudicator will provide an Adjudication Determination. This is essentially the judgment of the Adjudicator. The Adjudication Determination will include detailed reasoning of the Adjudicator and a final determination of an amount payable to the Applicant.
It is not uncommon for an Adjudicator to require that the Adjudicator’s fees be paid prior to releasing the Adjudication Determination. The Adjudicator will also determine who should be responsible for the Adjudicator’s fees and this usually is paid by the unsuccessful party. Read the rest of this entry »