Who’s liable for unsafe rental premises?

Posted on January 11th, 2018

The N.S.W. Court of Appeal recently considered the respective liabilities of a landlord, managing agent and tenant arising out of the collapse of a balcony at a rental property at Collaroy, on the Northern Beaches of Sydney (Libra Collaroy Pty Limited v Bhide).

In 2005, the landlord engaged a real estate agent to manage their residential rental property pursuant to a Management Agreement. During the tenancy, the tenant raised numerous issues concerning the state of repair of the upstairs balcony. The managing agent obtained quotes for repairs and forwarded these to the landlord however these were not acted on.

In 2012, the balcony collapsed injuring 4 people, including the tenant’s daughter. The 4 injured persons commenced proceedings against the landlord and the managing agent for their injuries and the tenant also commenced proceedings against the landlord and the managing agent for psychological injury. The landlord and managing agent issued cross claims against each other and also against the tenant. Read the rest of this entry »

Representing the interests of non-unionised workers

Posted on December 14th, 2017

On 13 December 2017 the High Court delivered a decision in a case of Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA55.

The central issue in dispute was whether an industrial association (such as a union, or other representative body) was entitled to represent workers who were not members of the industrial organisation.

The short facts were that Regional Express (REX) had written to a number of its pilots to the effect that if they made claims for accommodation costs during layovers, they would not be given command roles.  The Australian Federation of Air Pilots (AFAP), a representative body for commercial pilots, commenced proceedings alleging REX’s letter contravened a number of workplace rights.  None of the individuals to whom REX had written, were actually members of AFAP.  REX applied to summarily dismiss the proceedings on the basis that AFAP was not “entitled to represent the industrial interests of” individuals who were not members of its organisation. Read the rest of this entry »

National Domestic Violence Scheme commences

Posted on November 29th, 2017

Each State and Territory has passed model amendments to existing domestic violence legislation to enable the consistent recognition of  interstate orders. The terminology and laws remain unique to each jurisdiction, as do the conditions in the orders.  The key elements of the Scheme include:

  • A domestic violence order (DVO) made in any Australian State or Territory on or after 25 November 2017, is automatically recognised and enforceable in each other State and Territory. They include final and interim orders.
  • Applications to vary a nationally recognised order can be made in any State or Territory.  Read the rest of this entry »

Urgent applications, preservation orders and third party rights

Posted on November 1st, 2017

Many courts in Australia have processes that allow applications to be made before any formal litigation is commenced.  In the Federal Court, one form of ‘pre-litigation’ application that can be made, relates to the preservation of property or information that may be relevant to a later, substantive, claim. 

A recent example was where a software designer suspected a former employee had taken, and was using, its confidential information for the benefit of a direct competitor.  It sought orders for access to the ex-employee’s computers and other electronic devices for the purposes of copying their contents in order to preserve information that may be relevant to a future substantive claim. Read the rest of this entry »

When is a judgment final?

Posted on November 1st, 2017

There are some specific circumstances in which a Court will ‘go behind’ a judgment – even though it remains ‘on the record’ of a court and has not been set aside by appeal. One such circumstance is in bankruptcy proceedings. Although a judgment is ‘prima facie’ proof of a debt, in bankruptcy a judgment is never conclusive proof that a debt exists.

Where, for example, a judgment was entered by default (that is, the debtor did not actively defend the claim) a Bankruptcy Court can, and often does, look behind the judgment to see if there was a genuine debt upon which the judgment was based.  This generally occurs in circumstances where the debtor is seeking to set aside a Bankruptcy Notice or Creditor’s Petition, based on the judgment.  Read the rest of this entry »

Is your website a ‘business record’?

Posted on October 31st, 2017

Most of us understand, at least generally, that for material to be considered by a trial judge in the course of a hearing it must comply with the ‘rules of evidence’.  Both under the common law and under both the NSW and Commonwealth Evidence Acts, one class of material that can generally be given in evidence is ‘business records’.  The broad theory behind this is that businesses will generally maintain accurate records of how they have been conducted (for example as to who their customers are, what revenues they generate, how they carry out production etc) and that their historical records are therefore generally reliable material for the purpose of a court making decisions.

However when the ‘record’ is in the nature of advertising or promotional material, while it is certainly a document created by a business, the courts tend to be much more cautious as to whether these are ‘business records’ in the relevant sense.  The distinction seems to be whether documents are records of a business; or the product of it.  Consequently in recent times the courts have rejected attempts to tender, as business records, both corporate magazines (Australian Competition and Consumer Commission v Air New Zealand Limited (No. 5) [2012] FCA 1479 and extracts from a company’s web page (Clipsal Australia Pty Limited v Clipso Electrical Pty Limited (No. 43) [2017] FCA 60).  Read the rest of this entry »

Legal practitioners acting against previous clients

Posted on October 23rd, 2017

In what circumstances is a lawyer permitted to act against a previous client? The Supreme Court of New South Wales recently addressed this matter in Gujarat NRE India Pty Ltd v Wollongong Coal Limited [2017] NSWSC 209

The proceedings were conducted by way of a compressed urgent hearing which was held shortly before the main proceedings. The main proceedings were between Gujarat NRE India Pty Ltd (“NRE“) and Wollongong Coal Limited (“Wollongong Coal“). NRE was suing Wollongong Coal for damages suffered by NRE as a result of a default by Wollongong Coal under a commercial agreement for which NRE had guaranteed the obligations of Wollongong Coal.

The commercial agreement was called the Override Deed and enter into July 2013. The Override Deed required Wollongong Coal to pay $20,411,033.00 to a third party, UIL (Singapore) Pty Ltd. Wollongong Coal defaulted under the Override Deed and NRE was required to pay the balance in full to UIL.  Read the rest of this entry »

Think before you terminate!

Posted on August 15th, 2017

If you are thinking of terminating a contract that is of any significance, you must obtain legal advice prior to doing so.

Too often we see people take action to terminate a contract as a result of circumstances that they consider entitle them to terminate the contract and suffer significant consequences as a result.

If you terminate a contract or attempt to terminate a contract in circumstances where you are strictly not entitled to, or do so in an inappropriate manner, the other party may be entitled to treat your termination or attempted termination of the contract as a repudiation of the contract. Read the rest of this entry »

Casual employees to have the right to become permanent

Posted on July 7th, 2017

On 5 July 2017, as part of its four yearly review of modern awards, the Fair Work Commission issued a decision dealing with casual employment.

A significant outcome of that decision is a recommendation that (subject to conditions) casual employees will have a right to be converted to permanent employment.

At least part of the reasoning behind the decision is that many of the “basic” entitlements of the National Employment Standards are not available to casuals. For example, where two workers were engaged by the same employer and both had worked for extended periods of time, a permanent worker would have the benefit of the National Employment Standards safety net, but a casual would not. The Fair Work Commission considered that was an unfair outcome, even though casual workers typically were paid an additional loading. The decision also took into account, amongst other things, the relative disadvantage that casual workers experienced in trying to obtain loans from financial institutions.  Read the rest of this entry »

Anti-bullying laws and company directors

Posted on July 4th, 2017

We generally do not think of company directors as “workers”. However a recent Fair Work Commission decision says that directors are workers – at least for the purpose of its anti-bullying powers.

The anti-bullying part of the Fair Work Act says that “workers” are eligible to make an anti-bullying application. A “worker” is defined by reference to the Work, Health & Safety Act 2011 which itself lists a number of classes of activity that amount to being a “worker”. A company director is not included in the list; but the general description includes a ‘person carrying out work in any capacity for a person conducting a business or undertaking’.  Read the rest of this entry »

Changes to unfair dismissal threshold

Posted on July 4th, 2017

The “high income threshold” is the figure above which an employee is not eligible to bring a claim for unfair dismissal relief, unless their employment is covered by an award or enterprise agreement. Each year, the high income threshold for unfair dismissal claims is indexed upwards.

The components of remuneration that count towards to high income threshold are wages, money paid on a worker’s behalf (for example salary sacrifice towards non-concessional superannuation contributions; or to vehicle leases and the like) and the agreed value of non-monetary benefits (for example the provision of electronic devices).  Read the rest of this entry »

Workers’ duty to communicate when absent through illness

Posted on April 13th, 2017

Even when absent due to legitimate illness or injury, workers have to stay in communication with their employer, or they may be dismissed. 

Mr Laviano was absent from work for an extended period due to a psychological injury.  He had received medical advice not to read or access any communication from his employer for a part of that absence – a period of about two months – but that advice was not passed onto the employer.  During this time, the employer wrote to him advising of a medical appointment.   Read the rest of this entry »

Assignment of contracts – pre-existing knowledge

Posted on March 27th, 2017

Where contractual rights are assigned; can the recipient’s pre-existing knowledge invalidate those rights?

In Walker Group Constructions Pty Limited v Tzaneros Investments Pty Limited [2017] NSWCA 27 just such an issue arose.

The case is both factually and legally complex but the relevant parts can be summarised as follows. Walker constructed some concrete pavements at the Port Botany Container Terminal. The construction contract included warranties to make good any defects in the construction. At the time of the construction, the relevant land was leased by P&O. The lease was later transferred to Tzaneros as was the benefit of the warranties to Tzaneros.
Read the rest of this entry »

Redundancy and acceptable alternate employment

Posted on February 14th, 2017

I have previously written about ‘acceptable alternate employment’ as an element of the law of redundancy. In short, it is generally true that if an employer no longer requires a particular job to be done and terminates a worker, redundancy payments must be made.  An exception is where the employer obtains other acceptable employment for the worker – in which case it can apply to Fair Work Commission to reduce the redundancy payment that might otherwise have to be made. 

The Fair Work Commission recently considered – and refused – such an application.  The case shows that merely obtaining an alternate job for a worker is not enough, of itself, for an employer to be relieved of making redundancy payments.  The short facts were that the applicant company lost some hotel cleaning contracts to a competitor.  The applicant made arrangements for nearly 60 workers to be employed by the competitor.  It then applied to the FWC to be relieved of making any redundancy payments.
Read the rest of this entry »

Employees’ right to require annual leave

Posted on February 14th, 2017

annual leave From 29 July 2017 workers covered by a modern award will have a new right to require an employer to allow them to take annual leave.  The right will apply only where the employee has accrued substantial untaken annual leave.

The process is that the employee gives a notice which, if valid, must be approved by the employer. It is expected that a notice would only be given if agreement cannot be reached on dates. Read the rest of this entry »

Casuals and redundancy pay

Posted on February 14th, 2017

casuals redundancy payThe Full Bench of the Fair Work Commission recently dealt with a dispute about redundancy pay.  Put shortly, a number of permanent workers had been made redundant.  Their employment was governed by an Enterprise Agreement (EA).  Prior to becoming permanent employees, the workers had been engaged as casual workers on a systematic basis.  The question to be determined was whether the (lengthy) period of service as casual workers counted towards the period of notice they should have been given, and the amount of severance or redundancy pay to which they were entitled. Read the rest of this entry »

Over-selling a job

Posted on February 14th, 2017

over selling jobThe Federal Court has ruled a company must pay damages to a worker, who left a job due to unjustified representations about the future performance of the company.  Relevantly, the job offer included a base salary plus a profit share. The representations were to the effect that the company was trading profitably and would trade profitably in the future.  In fact, the company’s financial performance had dipped prior to the interview and deteriorated further. The worker was retrenched.  She brought a claim for damages on the basis that she left secure employment when she would not otherwise have done so, because of the representations. Read the rest of this entry »

Superannuation death benefits

Posted on February 9th, 2017

If a member of a superannuation fund dies (the deceased) there are a number of elements that determine how their superannuation death benefit will be paid.  These include the terms of the fund’s trust deed, applicable trust laws, the Superannuation Industry Supervision Act 1993 and Regulations (SIS) and the Income Tax Assessment Act.

SIS Regulation 6.22 provides that the trustee can pay a death benefit to any dependent of the deceased or to their Legal Personal Representative (LPR).

Read the rest of this entry »

Is unfair dismissal compensation taxable?

Posted on January 30th, 2017

Is Unfair Dismissal compensation taxable? Mullane and Lindsay SolicitorsThis issue can be of real practical importance, particularly to a dismissed worker, because knowing how much will be received “in the hand” is often an important factor in trying to negotiate settlements in unfair dismissal claims.

The reality is that whether or not a payment is taxable often depends on the nature of the payment. As a general proposition, compensation for wrongful dismissal is regarded as “capital” in nature and is not taxable but that is not universally the case. If a settlement includes components for unpaid wages or payment in lieu of notice (as well as compensation for wrongful dismissal) the whole of the payment can potentially be taxable unless the different component parts are clearly identified. Read the rest of this entry »

Keeping the pirates at bay

Posted on January 25th, 2017

pirate piracy

In December 2016 the Federal Court of Australia handed down its decision in Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503. This case represents a clear win for copyright holders.

The applicants, Foxtel and Roadshow Films, applied to the Court for an order requiring Internet Service Providers (ISPs) such as Telstra, Optus and TPG to block access to websites such as The Pirate Bay, Torrentz, TorrentHound, IsoHunt, and Solar Movie. Read the rest of this entry »