Bring up the bodies (with apologies to Hilary Mantel)
The NSW Supreme Court recently dealt with an unusual dispute, as to who had the right to bury the body of a deceased person.
The plaintiff was the deceased’s sister and the defendant was the deceased’s de facto spouse. Both litigants, and the deceased were of Aboriginal heritage and one of the factors considered by the Court was the importance of cultural, spiritual and religious factors relevant to the place of burial in Aboriginal culture. Read the rest of this entry »
Paying deposits by installments – vendors beware
It is increasingly common in contracts for the sale of land, for vendors to accept less than the traditional 10% deposit. Commonly, contracts contain clauses to the effect that, although the deposit remains 10%, a smaller sum is payable on the exchange of contracts and the balance of the 10% remains payable – typically at the time of settlement.
Problems can arise when the contract does not settle due to default by a purchaser. The vendor has not received (and cannot retain) the full 10% deposit. Claims to recover the outstanding part of the deposit are often defended on the basis that ordering payment of the balance of the deposit would be a “penalty” and is therefore impermissible. Read the rest of this entry »
Rights between joint guarantors
The NSW Supreme Court recently dealt with a claim for contribution between multiple guarantors. In simplified form a company “OD” loaned money to an incorporated legal practice. The loan was guaranteed by three individuals and a further company Trout Hall “Trout”. The loan was not repaid. Two of the three individual guarantors became insolvent. The lender sued the remaining individual guarantor, Mr Robert Clancy, and he cross claimed against Trout. 
Prior to final hearing Mr Clancy paid an amount to the lender to settle the claim against him. Ultimately, the Court held that Mr Clancy had paid more than required. Trout argued in its defence that because of the payment by Mr Clancy no amount remained owing from it to the lender. It seems the lender accepted that argument because the claim between the lender and Trout also resolved. 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 »
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.
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.
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 »
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 »
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 »
Love thy neighbour but not their trees?
Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in wills and estate planning,
commercial dispute resolution & litigation, and employment law.
The Land and Environment Court provides assistance to neighbours who are in dispute about trees. It is obviously preferable to talk to neighbours rather than take them to Court. However, knowing that the Court provides this type of service is helpful. It might persuade a neighbour to be more reasonable. Section 7 Trees (Disputes Between Neighbours) Act 2006 enables an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to property or injury to a person as a direct consequence of a neighbour’s tree. Read the rest of this entry »
Traps with Powers of Attorney
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The NSW Supreme Court recently dealt with a case about the transfer of a property under a Power of Attorney (PoA). Briefly, a Mrs Cohen, an elderly and infirm lady, granted a PoA to her son. The son was also the sole beneficiary of the only known Will of his mother.
The son used the PoA to transfer a home unit from her name to his. This particular PoA expressly permitted the son to confer a benefit on himself.
By the time of the hearing Mrs Cohen was in aged care; the cost of her care exceeded her pension; and the NSW Trustee & Guardian had been appointed to manage her financial affairs. It wanted to sell the unit, to release funds to be used for Mrs Cohen’s care. It argued the transfer was improper, despite the PoA allowing the son to benefit himself. Read the rest of this entry »
Underpaid wages – risks to business advisers
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
In recent months we have all heard of some high profile businesses that have underpaid wages. The 7-Eleven franchise has received some publicity in this context, but it is not alone. However it is not only the business in breach of wage payment obligations that is at risk.
Early in 2016 the Fair Work Ombudsman commenced civil proceedings against accountants who were business advisers to a hospitality business which allegedly underpaid workers. The allegation is that the accountants were ‘knowingly involved’ in underpayments and therefore have a separate liability to that of the business itself. Based on the FWO press release (the proceedings had not been determined at the time this article was prepared) the liability is said to arise because the accountants, having consulted to the business about a Fair Work audit, knew what the correct minimum wage was; but subsequently processed wages (for foreign workers on working holiday visas) at less than the minimum wage. Read the rest of this entry »
Adverse action and maternity leave
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The Federal Circuit Court recently upheld a claim that an employer had taken adverse action against a worker, by making her position redundant whilst she was on a period of parental leave.
The employer restructured its operations whilst the worker was on leave. Her job was reclassified. Subsequently the worker made a request for flexible working arrangements in order that she could return to work on a part time basis. She was informed the request could not be accommodated because her (new) position was being considered for redundancy. She was in fact informed her position was redundant shortly prior to the date upon which she was to return from parental leave. Read the rest of this entry »
The risks of a defamation claim
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Some readers might recall that when Lance Armstrong was in his pomp, he protected his reputation by aggressively suing in defamation if somebody suggested he was a drug cheat. For a long time that was a successful strategy for him. We all know what happened in the end.
The South Australian Supreme Court recently considered a defamation claim by an Anglican priest, who claimed he had been defamed by a newspaper that had suggested (amongst other things) he had been involved in sexual criminal conduct with a minor whilst a priest; that he had been predatory and hypocritical; and that he had abused trust. Most, although not all, of the allegations or ‘imputations’ were established during the trial. The priest therefore failed in his claim and there was a judgment entered in favour of the newspaper. Read the rest of this entry »
Casual or part time?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The classification of employees is a common issue in employment disputes, and there are often problems when record keeping is poor, or where award provisions are not observed.
In January 2016 the Federal Circuit Court heard a dispute between a medical receptionist and a Doctor as to whether she was a casual, or a part time, employee. The receptionist said she was a casual and had been underpaid by reference to the applicable award rate. The Doctor said she was a part timer and had been properly paid under the award.
There was no written contract so the Court looked to the award for guidance. It defined a part time employee, relevantly, as a person who worked “reasonably predictable hours of work”. It also said that a part time employee was entitled to the pro rata equivalent of entitlements available to fulltime workers. Read the rest of this entry »
Don’t vent your spleen on Facebook
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
A report from the UK illustrates one of the many dangers of Facebook and social media generally. Judge Beverley Lunt sentenced two brothers to suspended prison terms of 2 years following their convictions for selling cannabis. Within 90 minutes both brothers had posted comments on their respective Facebook pages that were, to say the least, disrespectful to the sentencing Judge. She was identified by name. Read the rest of this entry »
Court costs – when do they not “follow the event”?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Most of us are familiar with the expression “costs follow the event”; that is, in a litigated claim the loser usually is ordered to pay the winner’s costs. In some circumstances that rule can be varied. The NSW Civil and Administrative Tribunal (NCAT) recently dealt with an application to vary, based on two specific grounds.
A dentist was charged with, but acquitted of (under mental health legislation) indecent assaults against a patient. However the same facts resulted in disciplinary proceedings against him by the Health Care Complaints Commission. There was a finding of professional misconduct; and a declaration that, had the dentist not otherwise ceased to be registered, his registration would have been cancelled for a period of 18 months. The HCCC had sought a cancellation for 2 – 3 years. Read the rest of this entry »
Preliminary discovery – How do you find out if you have a claim?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
People sometimes suspect they have legal rights but just aren’t sure – and the only documents that may help them decide, are held by the prospective defendant. Many Courts allow for “preliminary discovery”, that is, for orders requiring a potential (not actual) defendant to produce documents and records to help the potential plaintiff work out whether they have a case or not. However it is not an easy process. To obtain preliminary discovery an applicant must show, amongst other things, that it was ‘otherwise unable’ to obtain sufficient information to decide whether or not to sue
An insurer (RealCover) sold policies through a broker (Gallagher). RealCover provided Gallagher with information such as client lists and renewal dates to facilitate that process. The agency arrangement came to an end early in 2015 and RealCover appointed a new broker; however it suffered a sharp decline in its business. It suspected Gallagher may have been using its confidential information to “target” RealCover customers. Gallagher denied this was the case and said that it contacted potential customers on the basis of other (non – confidential) information in its possession. Read the rest of this entry »
Dismissal whilst absent when ill
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Mr Byrne was employed with a mine. He approached his supervisor and requested two days annual leave but was refused. He made a statement to the effect that, despite the refusal, he would obtain a medical certificate and ‘would not’ attend work on the days in question. The manager responded that if Mr Byrne did so, there was likely to be a disciplinary process. Mr Byrne in fact consulted his doctor, was certified as unfit to attend work and did not attend work on the relevant days. There was a subsequent disciplinary process and he was dismissed. His union challenged that dismissal and, at trial, the judge made a positive finding after hearing evidence from the GP that on the days in question Mr Byrne had in fact been ill. The dismissal was nonetheless said to have been valid. That finding was appealed to the Full Court but failed. Read the rest of this entry »
Sham contracting arrangements
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Section 357 of the Fair Work Act prohibit the making of claims that a person is a contractor if they are, in truth an employee. Employers are liable to a civil penalty if they breach the section.
Quest South Perth Holdings Pty Ltd operated a serviced apartment building. It employed housekeepers. It subsequently entered an arrangement with a labour hire business, Contracting Solutions Pty Ltd, to supply housekeepers to it. Quest’s previously employed housekeepers were, in effect, “transferred” to Contracting Solutions and then “hired back” to Quest. They continued to provide fundamentally the same housekeeping services. It was alleged Quest had “represented”, that the housekeepers were independent contractors in breach of s357. Read the rest of this entry »