Making a Will “In Contemplation of marriage” – Part 1

Posted on April 24th, 2019

Contested Will… when a claim can be madePart 1 – The Facts

This short, two part article, looks at an aspect of will making that is familiar to lawyers, but perhaps not to the general public. It relates to the effect of marriage on a will.

A long standing principle of Wills in NSW that if someone has a Will, it is automatically revoked by subsequent marriage – unless the Will was made “in contemplation” of that marriage. In 2018, the Supreme Court had to consider, in a complex factual context, the meaning of that phrase. This article is necessarily a highly simplified summary of that factual context.

Whilst still married to his first wife, Mr Grant commenced a relationship with another woman, who he later married after divorcing. As a result, when he died, he had both children and stepchildren. The de facto relationship was “on again, off again” but became stable in about 2012. Read the rest of this entry »

Termination of Lease for Demolition – Is Good Faith Required?

Posted on April 23rd, 2019

It is common for leases, particularly in shopping centres, to contain clauses allowing the landlord to terminate the lease if they have plans to demolish the building (or the part containing the leased premises). The Retail Leases Act 1994 (NSW) does however contain some statutory protection for tenants by requiring the landlord to have a genuine proposal to conduct the demolition within a reasonably practicable time before the lease can be terminated on this basis (section 35).

A recent decision of the NSW Civil and Administrative Tribunal’s Appeal Panel has considered whether a landlord could use a demolition clause to terminate a lease so that it could enter into a new lease with a more commercially advantageous tenant (Wynne Avenue Property Pty Ltd v MJHG Pty Ltd [2019]).     Read the rest of this entry »

Strategic Settlement Offers Must Be The Real Thing

Posted on April 9th, 2019


The court did not award a higher rate of costs to a defendant despite the outcome of the case being better than an early offer it had made.


The plaintiff was a South African food supplements manufacturer trading under the brand name “The Real Thing”.  The Defendant acted as distributor for the plaintiff’s products in Australia.  The facts of the case are unimportant to the costs case, except to say that the plaintiff failed to make out allegations of: 1) Misleading and Deceptive Conduct; and, 2) Passing Off, and the proceedings were dismissed with costs awarded to the defendant. Read the rest of this entry »

The legal tangle of family finances

Posted on April 8th, 2019

Making a Will - beware the assets testIt is common for family members who provide financial support for each other not to put those arrangements in writing.   It is also common for lawyers to see those family members after the event when relationships have soured and for lawyers to find themselves saying to clients “if only you had put it in writing”.  There is no doubt that a written document is the best protection.  Read the rest of this entry »

Superannuation benefits – a trap for executors

Posted on April 2nd, 2019

Superannuation - who gets it when I die?Some years ago, I was involved in some litigation that arose when a man died leaving superannuation entitlements (but without nominating an intended recipient) and had nominated his partner as the executor of his Will. She personally wrote to the superannuation fund requesting the superannuation benefit be released to her on the basis that she was the deceased’s “spouse”; but she also applied for probate of the Will, which was granted. She was one, but not the only, beneficiary under the Will.

As soon as she became the Court appointed executor, she was in a position of conflict of interest. That was because she had asked the superfund to pay benefits to her personally but, as executor, she owed a duty to all beneficiaries to bring into the estate as much money as possible for their mutual benefit. She could not discharge that duty whilst simultaneously trying to obtain the superannuation benefit for herself. Read the rest of this entry »

Insurance Policies and Claims for Damages

Posted on March 6th, 2019

Consider this scenario:  a self-employed carpenter earns $1,000 per week.  He has income protection insurance, mainly in case he suffers a work injury.  He is injured when, whilst visiting friends, a balcony he was standing on collapses and he falls to the ground.  He is off work for 12 months.  He brings a claim against the property owners for damages for lost income.

In that situation, has the carpenter suffered any loss?  He has not been able to work, but he happens to have income protection insurance which pays him his $1,000 per week. He is, on the face of it, no worse off. Read the rest of this entry »

The aging process –legal mental capacity

Posted on February 22nd, 2019

Can my step child contest my will?In Re Estates Croft, deceased [2018] NSWSC 1303 a couple with 6 children, made last Wills which favoured certain children rather than each other.  This led to some children receiving more of the couple’s assets when they died.  As a consequence the children brought legal proceedings challenging the validity of both of their parents’ last Wills.  Judge Lindsay had to consider whether “unusual behaviour” by aging parents was sufficient to legally invalidate their Wills (lack of mental capacity to make a Will).  The Judge was careful to consider the evidence of their behaviour at the time of the making of the Wills.  In the husband’s case, for example, the Judge concluded that his Will was a “rational, measured response to the domestic disharmony that had confronted him over the previous 11 months or so”.   Read the rest of this entry »

Issues with Expert Evidence

Posted on November 9th, 2018

Issues with Expert EvidenceMany cases before the courts involve expert reports – such as medical evidence in personal injury cases; accounting evidence in loss of profit cases; and valuation evidence in property cases. However as a 2016 Supreme Court case shows, unless the report demonstrates that the expert has relevant expertise; and expresses the opinion in a way that allows a court to understand how the opinion was reached, it may be rejected as evidence.

The particular case was a complex fire/arson dispute relating to a fire at a property at Mosman in Sydney. At the time of the fire, significant extensions/renovations were underway. The insurer declined the claim on the basis that the property owner had set, or colluded in setting, the fire and had made misrepresentations in relation to his insurance claim. Read the rest of this entry »

What Is the Value of a Lost Opportunity?

Posted on October 5th, 2018

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.

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 »

Insurance non-disclosure – The Importance of what an Insurer knows

Posted on September 12th, 2018

In 2017, the Supreme Court considered a dispute about whether an insurer had to pay out a claim in circumstances where it alleged its insured had failed to disclose relevant matters in its proposal.

The (very brief) facts were that the insured was a company that operated a petrol station. Its insurance policy did not cover any liability arising from gradual pollution. In June 2013, a sewer near the petrol station exploded and it was ultimately determined the explosion was caused by a sudden petrol leak. The company carried out both repairs and preventative work; and then claimed on its policy. The insurer declined cover. Read the rest of this entry »

Directors’ liability for legal costs

Posted on June 25th, 2018

A cautionary tale for directors who might think they can hide behind a “corporate veil” and avoid personal exposure.  Parties to a complicated dispute settled the dispute and entered into consent orders.   Subsequently, an application was made against one plaintiff company to enforce the consent orders.  The company had failed to execute all necessary documents.  When the plaintiff company continued to fail to comply, the Supreme Court (Tasmania) made an order under section 169 Supreme Court Civil Procedure Act 1932 (Tas) empowering the Registrar of the Court to execute the documents instead.  The Defendant then sought a costs order for the cost of enforcing the orders.  Read the rest of this entry »

Bankruptcy and the “slip rule”

Posted on June 13th, 2018

Bankruptcy and the "slip rule"Most of us understand that once a judgment in a Court case is entered, it is final (except for any appeal rights). One minor exception, commonly known as the ‘slip rule’, is where an obvious error was made in a judgment or order. In the case of such an error, it can be corrected under the slip rule without the necessity for an appeal.

Slip rule applications are relatively rare. Even rarer was the situation that arose in 2016 when the Court was asked to make a slip rule correction to a judgment affecting a person who had become bankrupt. Under the Bankruptcy Act when a person becomes bankrupt, a creditor cannot “take any fresh step” in Court proceedings, except by leave. The issue the Supreme Court had to determine, was whether making a correction under the slip rule amounted to a “fresh step”. If so, the correction was not possible except by leave of the Federal Court (as opposed to the Supreme Court, where the proceedings had been instituted). Read the rest of this entry »

Lower than expected service leads to compensation

Posted on June 13th, 2018

Lower than expected service leads to compensationThe Applicants contracted the Respondents to arrange their wedding reception at a venue overlooking Sydney Harbour. At 4 PM on the big day a pipe burst causing a flood.

The Respondents did not own the venue and did not cause the leak. The Respondents notified the building Manager as soon as they became aware of the leak.  The reception was briefly delayed, tablecloths were placed on the wet floor, the room reconfigured to avoid the water leak, and buckets collected dripping water.

The tribunal was satisfied the respondent had not breached its guarantee to provide the services with “due care and skill” because it took measures to alleviate the problem. It was however satisfied that the water leak and slight delay made the reception not fit for purpose and the guarantee was unaffected by the fact the respondent did not cause the leak. Read the rest of this entry »

Costs – who pays when each party has some success

Posted on April 4th, 2018

The Supreme Court recently issued a cost decision that grapples with an issue that occasionally arises once litigation is finalised.  That is, if there are several issues in dispute in the proceeding, and both parties have some measure of success on various issues, who should pay costs?

The usual rule is that ‘costs follow the event’.  That is, the successful litigant usually gets an order that the unsuccessful litigant should pay their costs.  Costs are not intended to be a penalty but rather to recompense the successful litigant for the cost of vindicating their rights.  Where one party is wholly successful, they would ordinarily expect a costs order in their favour.

It is less easy to apply that ‘rule’ where each party has some, but not total, success. Read the rest of this entry »

Jones v Dunkel – the problem of not calling a witness at a hearing

Posted on April 4th, 2018

Most lawyers know the case Jones v Dunkel: in general terms, it is authority for the proposition that if a party does not call a witness who can apparently give evidence about a matter in dispute, the failure to call them allows the Court infer that the evidence of that person would not assist the party. This is one of the reasons why witnesses are often required to give evidence, even though they may not be of particular assistance to a litigant – to avoid an unfavourable inference if they are not called.

A recent Supreme Court decision, dealing with an insurance policy dispute, led to a discussion of the so called “Jones v Dunkel inference”.  The plaintiff made a decision not to call a number of witnesses at trial; and the defendant asked the Court to make a Jones v Dunkel inference. In dealing with that argument, the Court summarised the principles or considerations that are at play in deciding whether such an inference should be drawn. In particular, the Court suggested that it is the person asking for the inference to be drawn (that is, the opponent of the litigant who did not call the witness) who must prove two fundamental things namely:- Read the rest of this entry »

Liability in the absence of a therapeutic relationship

Posted on April 4th, 2018

The NSW Court of Appeal recently found a medical treatment provider was liable for personal injury, even though there was never a therapeutic relationship with the person who was injured.

Briefly, a Mr Mason suffered from psychological illness for which he was taking medication. He was remanded in custody on criminal charges, to Parklea Correctional Centre. It was privately operated by GEO Group under contract with the State Government. The contract required GEO to provide psychological and counselling services to inmates.

When Mr Mason was processed at Parklea, he told employees of GEO about his conditions and medications, but he was not prescribed any replacement drugs nor referred for counselling or other treatment. Days later, he jumped from a high level landing and suffered personal injury. He then sued GEO for those personal injuries. That case settled, but a related claim between GEO and its insurer continued because the insurer contended that its policy did not provide cover unless GEO had actually provided (medical) services. Read the rest of this entry »

Rental car agreements & drink driving

Posted on April 3rd, 2018

It is a common provision in car rental agreements that if the car is damaged as a result of the driver breaching a law in force where the accident occurs, insurance coverage will not be available. The clauses are often drafted to cover a wide range of breaches of the law but that would almost always include an accident that occurs when the driver was “over the limit” for blood alcohol.

One of the features of the Insurance Contracts Act, which governs a number of classes of insurance policies including car rental agreements, is that if there is a “technical” breach of the policy, but that particular breach did not cause the loss or increase the risk of loss, the insurer may not be able to refuse cover. However, that principle only applies where a policy of insurance exists – as Gardam’s case shows, it has no application to a document (such as a rental agreement) that is not an insurance contract. Read the rest of this entry »

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 »