Loans to Children – Don’t be Vague
When making loans to children, you will probably be nagged by conflicting emotions and truisms. Should I document the loan for clarity? But they look so happy together and can use it more now than after I die. I worked hard to earn that money; what if there’s another GFC and I need to be repaid? It’s all peace now, but should I prepare for war? Will a stitch in time save 9?
I cannot over emphasise the need for clarity and documentation when making loans to children. If it is a loan, it needs to be documented and shown that there is an intention to create legal relations. The loan document should record the amount(s) being advanced; the interest rate, if any; the term of the loan; and when it must be repaid. If it is a large enough amount and you want security, then you should insist on a registered mortgage. Speak about the “elephant in the room” with your child’s partner/spouse, as awkward and difficult as that might be. It is a loan to your child and it will need to be repaid. Read the rest of this entry »
Contested Will… when a claim can be made
Section 58 of the Succession Act 2006 provides that an application to contest the Will of a deceased person must be made no later than 12 months after the date of death of a deceased person. However, the Court can on sufficient cause being shown order that an application be permitted to proceed notwithstanding that it is made more than 12 months after the date of death of the deceased person. There must be a very real reason why the application was not brought within time. Read the rest of this entry »
Can an employer discriminate based on criminal record?
A recent case in the Australian Human Rights Commission (“AHRC”), BE v Suncorp Group Ltd [2018] AusHRC 121, has looked at the issue of discrimination against a prospective employee due to their criminal record.
The definition of ‘discrimination’ in section 3(1) of the Australian Human Rights Commission Act 1986 provides that discrimination “does not include any distinction, exclusion or preference in respect of a particular job that is based on the inherent requirements of the job”. Therefore, employers can choose not to employ a person because they have a criminal record if the criminal record is relevant to the inherent requirements of the job.In Qantas Airways v Christie [1998] HCA 18, Brennan J stated that “the question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs”. This means that after committing some offences, there may be some jobs that a person will not be eligible to perform by reason of their criminal record. For example, it would not be considered discrimination if an employer did not employ a person with a criminal record involving dishonesty offences if the employment involved tasks requiring honesty such as dealing with sensitive and confidential information; or dealing with money. Read the rest of this entry »
What Is the Value of a Lost Opportunity?
When is a ‘lost opportunity‘ really lost? And, when it is, what’s it worth?
These were the questions considered by the NSW Court of Appeal in the recent decision Mal Owen Consulting Pty Ltd v Ashcroft [2018] NSWCA 135.
Background
In 2006, a solicitor, Ashcroft, was retained to recover a debt. Court proceedings were started but not actively pursued (the First Proceedings). This was accepted by Ashcroft as a breach of professional duty.
In 2010, new solicitors were appointed and fresh proceedings commenced which resulted in a judgment debt of $200,808.00 being awarded (the Second Proceedings). The subsequent appeal was unsuccessful and on 18 December 2013 the debtor entered bankruptcy. The plaintiff was not paid a dividend from the bankruptcy. Read the rest of this entry »