What a difference a (leap) year makes

Posted on January 16th, 2019

What a difference a (leap) year makesWe have all heard jokes about people born on 29 February in a leap year, claiming to be younger than they really are because technically they only have a birthday every 4 years. However the ACT Supreme Court has had to grapple with the implications of a leap year birthday in somewhat different circumstances.

The plaintiff in the proceedings was born on 29 February 2000. She was charged with committing criminal offences on 28 February 2018. Depending on whether the plaintiff was an adult or a child on the date of the offences, she would be dealt with either as an adult or in a Children’s Court.

A Magistrate in the Children’s Court had decided the plaintiff was an adult and that the case must be sent to the Magistrate’s Court (the equivalent of the NSW Local Court) where the plaintiff would be dealt with as an adult. The plaintiff appealed that decision to the Supreme Court. Read the rest of this entry »

Charity in Wills – Don’t waste the gift

Posted on January 15th, 2019

What executors need to knowWills are ambulatory. The circumstances existing on the death of the will-maker apply.  This poses difficulties since most people cannot help but write Wills with “today” in mind.

A recent case in the Supreme Court involved legal effort and expense when circumstances changed even in a situation when the will-maker had tried to accommodate the possibility of change. Read the rest of this entry »

Things to tell your Family Law lawyer in the first consultation

Posted on August 29th, 2018

Top 8 things to tell your Family Law lawyer in the first consultationI understand that no one likes to air their dirty laundry to a lawyer they have just met. But, in the context of Family Law there are three important things to bear in mind:

  • You cannot change your past. It is important to be honest about the past if it is relevant to the outcome;
  • If I am going to provide you with sound legal advice, it is vitally important that I know about all the skeletons hidden away in your closet. This is especially true in Family Law, when every seemingly forgotten fact from your past could be important in determining the matter – or in a bad case, could be used by the other side to build a case against you; and
  • I take the duty of confidentiality that I owe you very seriously. Without your express consent I cannot reveal the information you to tell me.

Read the rest of this entry »

Can lease obligations operate ‘prior’ to the commencement date of the Lease?

Posted on June 25th, 2018

Can lease obligations operate 'prior' to the commencement date of the Lease?Will a Court enforce provisions of a lease against a party in respect of a period of time prior to the commencement date of the lease? This was one of the questions raised in Bonafair Holdings Pty Ltd v Hungry Jacks Pty Ltd.

His Honour, Sackville AJA, concluded that the language used by the parties in the relevant clauses will be determinative on the issue. “It is of course possible for a lease to contain provisions attaching consequences to events or conduct pre-dating commencement of the lease… However, in the absence of any language evincing a contrary intention, provisions in a lease for a term of years ordinarily create rights and obligations between the lessor and the lessee as and from the date the term of the lease commences“. 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 »

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 »

Don’t drink and dial…

Posted on December 14th, 2017

The Christmas and New Year period is a time when spirits are high, drinks are flowing and the consequences of actions are not always considered. Even the simple action of making a phone call or sending a text message can have serious consequences.

It is a criminal offence under Australian law to use a mobile telephone in a way that is menacing, harassing or offensive. This can include the method of use, the content of the communication, or both. Repeated, unwanted calls can amount to harassment under this law.  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 »

The sheriff is knocking; but the appeal has not been heard

Posted on October 25th, 2017

In the Australian Court system, unsuccessful litigants generally have some right appeal. It is not well understood that the mere fact of lodging an appeal does not automatically prevent enforcement of the underlying judgment. So, what happens if a judgment is entered against you and you lodge an appeal but in the interim, the successful litigant tries to enforce the debt? 

In NB2 Pty Ltd v PT Limited [2017] NSWCA 257, just such a situation was considered. The case related to the lease of a “fruit and veggie” shop in a Westfield complex. The tenant, NB2, claimed it had been misled into entering a lease (which it could not pay rent competing business also set up in the shopping centre). That argument had failed and judgment had been entered both against NB2 and its director/guarantor for just less than $4,000,000.00. An appeal was lodged but in the interim, the successful litigant issued winding up notices against NB2, and bankruptcy notices against the guarantors.  Read the rest of this entry »

Carer’s leave: what are your rights and responsibilities?

Posted on October 13th, 2017

Munro v Wilmar Australia Pty Ltd [2017] FWC 2493 is a recent decision of the Fair Work Commission (FWC)  which provides guidance to employees and employers about what an employee is permitted to do while taking a period of paid carers leave. 

Specifically, the FWC considered whether an employee would be permitted to work in their own business during a period of paid carer’s leave taken in the employee’s primary employment to care for a family member.

The FWC considered that the nature of carer’s leave is different to sick leave where it is the worker who is incapacitated from performing duties.  Read the rest of this entry »

Attorney-General announces review into family law system

Posted on October 10th, 2017

The Attorney-General has commissioned the Australian Law Reform Commission (ALRC) to conduct a review of the Australian family law system; the first comprehensive since the commencement of the Family Law Act in 1975. 

Some of the matters that the Government has asked be reviewed include whether reforms are needed for:

  • Families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness;
  • Collaboration, coordination and integration between the family law system and other Commonwealth, state and territory systems, including family support services and family violence and child protection systems;
  • Improving the clarity and accessibility of the law.

Read the rest of this entry »

Five stages of letters of administration

Posted on July 14th, 2017

A grant of letters of administration is a formal order from the Supreme Court which provides authority to the administrator(s) to carry out administration of a deceased estate in accordance with the rules of intestacy. The person appointed as administrator is usually one or more of the primary beneficiaries of the estate. Generally speaking, an application for letters of administration is dealt with by paperwork only and does not require court appearances, however it is not necessarily a simple process.

Usually, an application for letters of administration and the associated administration of an estate involves five steps. These are as follows:-  Read the rest of this entry »

When is a deposit refundable under a business sale agreement?

Posted on July 10th, 2017

The case of Sarker Trading Pty Ltd v Vanage Pty Limited [2016] NSWDC 250 recently addressed the issue of deposits and whether or not a deposit can be forfeited under a Business Sale Agreement where the Agreement is rescinded.

The facts of the case are:

  • Sarker, as purchaser, entered into a Business Sale Agreement with Vanage for the purchase of a Subway Franchise in Forestway NSW for $95,000.00 (“the Agreement“).
  • The Agreement provided that it was a condition precedent to completion that Sarker be approved as a Franchisee of Subway.
  • Sarker paid an initial deposit of $10,000 (10.5%) and a further “Security Deposit” of $75,000.00.
  • Sarker failed the relevant “Skills Test” performed by Subway required to be approved as a Franchise.
  • Sarker sought to rescind the Agreement for an inability to satisfy a condition precedent to completion.
  • Vanage asserted it was entitled to retain the deposit and the Security Deposit.

Read the rest of this entry »

Can I have a copy of the Will?

Posted on June 28th, 2017

When a person makes a Will he or she is not obliged to show the Will to anyone. Some people do, some people don’t. However, after the Will maker has died, certain people are entitled to a copy of the Will as provided for in Section 54 of the Succession Act 2006. Those people who are entitled to a copy are:- 



Read the rest of this entry »

Business succession plans and fine print

Posted on June 28th, 2017

A scenario from a real case demonstrates how much it pays to ensure that a well thought out business succession plan is in place. Three veterinary surgeons operated a business in partnership.  One of the surgeons was diagnosed with cancer.  Steps were taken to dissolve the partnership and for his share of the business to be sold to the remaining partners. At the suggestion of a financial planner, the surgeons had all agreed to take out insurance with MLC “Live Cover Super”.

The cover was for 2 different types of event: death or total and permanent disability. A deed of dissolution of the partnership was drafted which provided that on receipt of the insurance proceeds, two thirds of the proceeds would be paid to the surviving partners to help them buy out the departing partner. Read the rest of this entry »

Is a company in liquidation truly dead?

Posted on May 19th, 2017

When a company is placed into liquidation, is it really final? The case of SCW Pty Ltd (in liquidation) [2017] NSWSC 449 recently outlined the circumstances where the liquidation of a company may be terminated by the Court and the company reinstated. 

Prior to its liquidation, SCW Pty Ltd carried on a business primarily by way of investment in four properties and the ownership of two boats. The shareholding in the company was equally held by a husband and wife and their related corporate entities. The husband and wife were each directors of the company. The company was wound up by order of the Court on 11 April 2001 on just and equitable grounds due to ‘irreconcilable differences’ and deadlock between the directors.  Read the rest of this entry »

Successful company with storm clouds on the horizon

Posted on May 19th, 2017

Company planning is imperative. I recently saw a client of mine who was a director and shareholder in a very successful Hunter Valley company. Let’s call them Company Y. 

Many years ago, my client set up Company Y with his good friend and business partner. They were/are both directors and shareholders in Company Y. When Company Y was established a generic Company Constitution was produced on registration. The Company Constitution was not appropriate for the purposes of Company Y.


Read the rest of this entry »

Sale of business vs company sale

Posted on May 19th, 2017

In this article we will look at the differences between the sale of a business and the sale of a company including a few of the pros and cons for each. 

Firstly, there is a significant difference between the sale of a business and the sale of a company. A business is an enterprise usually engaged in to generate revenue (i.e. the business of selling food or the business of providing accounting services).  It is possible for a business to be operated/owned by a number of different entities (such as individuals, companies or trusts). When a business is sold, it is sold from one entity (the owner) to another entity (the purchaser). Usually the sale of the business will consist of the transfer of assets, goodwill, intellectual property, licences, business name, plant and equipment.  Read the rest of this entry »

Three things to consider when leaving a gift of real estate in your Will

Posted on May 11th, 2017

The idea of leaving a specific gift of real estate in a Will appeals to some people. If a specific gift of real estate is going to be given, the following three things need to be properly considered:

  • ademption – if a specific gift of real estate is left in a Will but it has been sold before death, the legal principle of ademption provides the gift fails. Even if the sale proceeds were used to buy a new house, the gift will fail unless the Will is drafted to specifically contemplate this.
  • mortgages – did you know that under Section 145 of the Conveyancing Act, a mortgage over a property which is specifically gifted under a Will attaches to the gift (unless the Will expressly says otherwise). This means the beneficiary who is gifted the property will ultimately be responsible for repayment of the mortgage unless there is an express intention against this in the Will.
  • capital gains tax – while a principal place of residence is exempt from capital gains tax,  investment properties are not. A beneficiary who receives a property will take it subject to any capital gains tax liability and this often isn’t thought about until the beneficiary goes to sell the property and is hit with a tax bill.

Read the rest of this entry »