A Father’s Promise to his Son – The Sequel
David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
We previously outlined the Family Law case of Hampton & Farley, in which the Family Court made good on a farmer’s promise to his son that “the farm” would be the son’s “one day”. There has since been another reported Family Court case of Daymond & Daymond, in which the wife sought a Family Law property settlement and claimed upon the husband’s share of a business, co-owned by his brother. The son of the husband and wife claimed that the husband and the son’s uncle held the business in trust for the son, due to assurances given years earlier that the son would take over the business after a period of working for them.
The judge held that the promises made to the son about what he would receive were too vague to establish that the son had suffered any detriment in reliance upon them, as at the date of the trial. The son’s claim therefore failed and the judge proceeded to determine the property settlement on the basis that the father and uncle remained the absolute owners of the business.
Hampton & Farley involved similarly vague promises by a father to his son, which similarly caused the son to work on a family farm that was vaguely defined, for an uncertain beneficial interest at an indeterminate future time. Yet, in that case, the son succeeded. Such varied outcomes further highlight the need for family members to formalise business relationships, including as to what might happen if related spouses separate.
David Gawthorne is a Senior Solicitor at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact David Gawthorne to arrange a consultation or contact our Newcastle office.
A Father’s Promise to Son – The Sequel
David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
We previously outlined the Family Law case of Hampton & Farley, in which the Family Court made good on a farmer’s promise to his son that “the farm” would be the son’s “one day”. There has since been another reported Family Court case of Daymond & Daymond, in which the wife sought a Family Law property settlement and claimed upon the husband’s share of a business, co-owned by his brother. The son of the husband and wife claimed that the husband and the son’s uncle held the business in trust for the son, due to assurances given years earlier that the son would take over the business after a period of working for them. Read the rest of this entry »
“Quiet Enjoyment” and Repairs in Leases
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The Supreme Court of WA recently considered a commercial leasing dispute. Telstra leased office space inPerth. It had relocated all staff, but left furniture in the premises. The lease still had 10 months to run and Telstra was trying to sub-let for the balance of the term. After staff had moved, the landlord commenced major building work. Walls and internal rooms were knocked down, carpets were stripped and much of the ceiling was replaced. Telstra had agreed to minor work being done, but when it discovered the extent of the work it immediately terminated the lease. Read the rest of this entry »
New Home Grant Scheme & Replacement of the First Home Owner Grant Scheme
Michael McGrath is an Associate Director at Mullane & Lindsay in Newcastle and specialises in Commercial & Property Law.
The NSW Government announced in its budget on 12 June 2012 introduction of the New Home Grant Scheme which applies to all buyers of new homes in NSW and also of important changes to the current First Home Owner Grant scheme.
From 1 July 2012, a new grant of $5,000.00 will be provided to buyers of new homes, whether off the plan of newly built, with a value up to $650,000.00 and to buyers of vacant land that is intended to be the site of a new home valued up to $450,000.00. The grant is available to all non-first home buyers and is available to investors as well as owner occupiers. Read the rest of this entry »
Changes To Business Name Registrations
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
Business name registrations are currently handled in NSW by the Department of Fair Trading. From 28 May 2012, this process will be streamlined and managed nationally by Australian Securities and Investments Commission (ASIC). ASIC will oversee a national business names database and will handle all Australian business name applications and renewals. Read the rest of this entry »
Still Breed them Local after 30 Years
Newcastle law firm introduces newly appointed Associate Directors
Mullane & Lindsay has announced the appointment of two new associate directors, both by internal appointment.
Michael McGrath practices in property and commercial law, with a particular emphasis on commercial leasing and on the tax implications of various transactions. Michael has been with the firm for 10 years.
Kristy Nunn works primarily in the area of civil litigation, and has particular expertise in professional indemnity and insurance claims generally. Read the rest of this entry »
Free Stamp Duty, Time is Running Out
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
In the recent State Budget, the Treasurer announced that “First Home – New Home” will replace the First Home Plus scheme from 1 January 2012. As from that date, the existing scheme whereby all first home buyers purchasing for under $500,000.00 enjoy an exemption from stamp duty. After 1 January 2012, free Stamp Duty will be available to an eligible purchaser who is a natural person (ie not a company or trust) at least 18 years of age who has not and whose spouse / de facto spouse has not: Read the rest of this entry »
Guarantors of Family Companies
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The Queensland Court of Appeal recently considered a case relating to a personal guarantee given by a property developer for his development company. The facts were complex but, briefly, Mr T guarantee borrowings of his company JPL in relation to a property development. There was a default and the lender sued JPL, not only for the principal debt, but also for fees and charges which, the lender said, were payable under the terms of the loan agreement. JPL paid the principal debt, but disputed the fees and charges.A Court held they were payable and JPL was ordered to pay the litigation costs. It did not do so and those costs were assessed in excess of $100,000.00. The lender then sought to recover the litigation costs from Mr T, as guarantor. Read the rest of this entry »
Residential Tenancy Laws Are Changing – Part Two
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial and Property Law Team.
In last week’s article, we commenced examining the key changes under the new residential tenancy laws which will commence on 31 January 2011 with commencement of the Residential Tenancies Act 2010 (“the Act”).
According to the NSW Office of Fair Trading, the key changes under the new residential tenancy laws also include:- Read the rest of this entry »
Residential Tenancy Laws Are Changing – Part One
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial and Property Law Team.
New laws for residential tenancies will commence on 31 January 2011 with commencement of the Residential Tenancies Act 2010 (“the Act”). This is the first revamp of residential tenancy laws in NSW for more than 20 years and implements key reforms affecting both landlords and tenants. Read the rest of this entry »
SUPERANNUATION – Binding Death Nomination
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
It is prudent for a member of a Superannuation Fund to file a binding death benefit nomination if at all possible. This ensures that his or her Superannuation benefits are paid in accordance with the wishes of the member after death. Before doing so, a member should check with his or her fund to ensure that there is provision in the rules of the Superannuation Fund for the filing of a nomination. The nomination removes the discretion of the trustees, as the trustee must pay the Superannuation in accordance with the nomination. To be effective, the binding death benefit must: Read the rest of this entry »
SUPERANNUATION – Who Gets It?
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
A person’s Superannuation is often substantial and sometimes even a person’s largest asset. However, many people are under the misunderstanding that when they die, their Superannuation will pass under the terms of their Will. This is not correct.
Each Superannuation Fund has a trustee and the trustee of the Fund determines who receives the Superannuation after the owner of the Superannuation dies. The trustee is bound to take into consideration, the terms of the Superannuation Trust Deed and the relevant legislation. However, the trustee is not bound to take notice of the deceased’s Will. You may well ask the question “How do I ensure my Superannuation goes to the person (or persons) of my choosing?”. Read the rest of this entry »
Abolition of Torrens Assurance Levy
By Sally Davies
Sally Davies is a Solicitor at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team
The NSW Government has abolished the controversial Torrens Assurance Levy from 1 July 2011.
This levy was introduced by the previous government on 1 July 2010, and was imposed on all property transactions over $500,000. The amount payable was determined on a sliding scale according to the purchase price, and was up to 0.25% of the value of the property being transferred. Read the rest of this entry »
Senior’s Principal Place of Residence Exemption
By Sally Davies
Sally Davies is a Solicitor at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team
On 1 July 2011, the NSW Government extended the Seniors Principal Place of Residence Duty Exemption to persons aged 55 years or older (previously 65 years or older).
Seniors who purchase a new home, or who make an off the plan purchase when construction has commenced, may be entitled to a full stamp duty exemption of under the Seniors Principal Place of Residence Duty Exemption under section 87A of the Duties Act 1987. Read the rest of this entry »
GUARANTEES: Security for lenders
Published by Law Society of New South Wales
In a recent case, the court of appeal considered a case where a mortgage was varied, lengthening the term, increasing the principal and raising the interest rate, after the guarantors had resigned as directors of the company which had taken out the mortgage. The lender, who suffered a shortfall on the sale of the security, sought to recover from the guarantors.
The court concluded that the variations altered the nature of the guarantors’ obligations. By reason of the increase, the guarantors would have been exposed to a potentially greater risk of being called upon to meet a default by the company of its obligations under the mortgage, “even if their liability was limited to the original sum lent to the company ($240,000) plus interest”.
CLASS ACTIONS: Things to know
Published by Law Society of New South Wales
In the current economic climate it is not surprising that investor class actions are receiving increased attention.
There is some suspicion and confusion about class actions. Some people have an enduring belief that they must be taking on an unacceptable level of risk if they get involved. Equally, some may just have an aversion to continuing in a claim commenced without their express consent, despite the fact that it could benefit them financially to do so.
DE FACTO RELATIONSHIPS: Am I entitled to a property settlement?
Published by Law Society of New South Wales
If you were in a de facto relationship which has broken down since 1 March 2009, you can make a claim for a property adjustment under the Family Law Act. However, you usually need to show that you have lived together for at least two years.
If your relationship has lasted less than two years, you may claim if there is a child of the relationship; or you are caring for a child of the other party, and the failure to make an order would result in serious injustice to you; or you made substantial contributions (financial or personal) for which you will not receive adequate compensation if the court does not make a property order, and the failure to make an order would result in serious injustice to you.
Landholder Duty: Tax base expands
Published by Law Society of New South Wales
New state revenue laws create a new model for imposing duty on land.
Since 1987, NSW has had a tax system which imposes duty on the acquisition of interests in private companies and unit trusts that hold land in NSW.
Prior to 1 July, the rules applied where a “relevant acquisition” was made of a “land-rich” landholder. A private company or trust was considered land-rich if 60 per cent or more of its total assets comprised land or interests in land in all places, and $2 million worth of it or more, needed to be in NSW.
Under the new system, provided the entity holds land worth $2 million or more in NSW, it is irrelevant what proportion of its value is in land.
This expands the tax base to acquisitions of many non landfocused entities, such as in the manufacturing and service sectors. Duty at a top rate of 5.5 per cent must now be calculated not only on the unencumbered value of NSW land, but goods in NSW held by the entity as well.
Property Settlement: What is a de facto relationship?
A de facto relationship is a relationship that two people who are not married or related by family have as a couple living together on a ‘genuine domestic basis’. It can exist between 2 people of the opposite sex, or between 2 people of the same sex.
All the circumstances of the relationship will determine whether a couple have a de facto relationship.
These include:
- the duration of their relationship
- the nature and extent of their common residence
- whether a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them
- the ownership, use and acquisition of their property
- their degree of mutual commitment to a shared life
- whether the relationship has been registered, in a State or Territory with laws for the registration of relationships
- the care and support of children, and
- the reputation and public aspects of their relationship.
If you have a problem and require the assistance of an experienced Newcastle Family Lawyer’s, Mullane & Lindsay’s family Law team of Mark Sullivan, Vivien Carty, Ashleigh John and Kristy Davis at can assist you.
The Duty of Banks to Protect Borrowers
It is not widely understood that although banks and other lenders are entitled to advance their own commercial interests in making loans; they also have obligations to borrowers which, if breached, might result in a loan agreement being declared void.
A recent NSW Supreme Court case of Satchithanantham illustrates one aspect of the duty owed to borrowers.
The case was factually complex but, in essence, the borrower, Mrs S, was prevailed upon by her (bankrupt) husband to take out a loan, secured by mortgage on the family home. The Court held that when the loan application was signed, the bank officer involved did not make adequate enquiry about the stated purpose of the loan or as to Mrs S’s capacity to repay the loan.
As it happened, the Court also held that Mrs S had been deceived (by her husband) into believing the loan was an ‘ordinary’ home loan for a specific amount – in fact it was a line of credit for a substantially greater amount and which could be cancelled at any time whether or not repayments were in default.
Property Law – Compulsorily Acquired Land Claiming Loss of Profits
This Property Law article has been reproduced with permission from the Law Society of New South Wales.
Claims for compensation are often made not only by landowners but also by businesses which operate on acquired land.
Many state authorities have the power to compulsorily acquire land for public purposes. The law ensures that compensation is paid for the market value of the acquired land and for ‘disturbance’ to the dispossessed owner.
An ‘owner’, for the purposes of the law, means any person who has an “interest in the land”, which would include, in most cases, any business operating from the land with a lease or similar arrangement. Some public works may also have a short-term impact on a business’ profits.
Removal of same sex discrimation federally
The Federal Attorney General has announced that legislation to remove same-sex discrimination from a wide range of Commonwealth laws will be introduced in the Winter Sittings of Parliament. This reform follows the report of HREOC, Same-Sex: Same Entitlements, which focused on financial and work-related legislation.
Areas where discrimination will be removed include:
- Tax
- Superannuation
- Social security
- Health
- Aged care
- Veterans’ entitlements
- Workers’ compensation
- Employment entitlements
- Other areas of Commonwealth administration
The Government has begun introducing legislation in the Winter Sittings of Parliament. In areas such as social security, tax and veterans’ affairs, the reforms are expected to be phased in – to allow time for couples to adjust their finances, and for administrative arrangements to be implemented.
All of the changes are expected to be implemented by mid-2009.
If you have any queries relating to Family or Relationships law please do not hesitate to contact any of our Family and Relationships Law Team at Mullane and Lindsay: Mark Sullivan, Vivien Carty, Kristy Davis and Ashleigh John. Kristy Davis is present at our Tea Gardens office on Wednesday afternoons by appointment. (Tel: 4928 7300).
Fixtures from sale of a property
Source: Law Society of New South Wales
What can I take from home?
All ‘fixtures’ are included in the sale of a property without having to be mentioned specifically.
A fixture is something attached to the land or building that cannot be either simply lifted up and taken away, or unscrewed and taken away without doing any damage. For example, most electric stoves are wired in, so they are fixtures, but most refrigerators are plugged in, so they are not fixtures.
For both buyer and seller, the safest course is to ask your solicitor to specifically include or exclude in the contract any items about which there can be room for doubt.
COMPULSORILY ACQUIRED LAND Claiming loss of profits
Claims for compensation are often made not only by landowners but also by businesses which operate on acquired land.
Many state authorities have the power to compulsorily acquire land for public purposes. The law ensures that compensation is paid for the market value of the acquired land and for ‘disturbance’ to the dispossessed owner.
An ‘owner’, for the purposes of the law, means any person who has an “interest in the land“, which would include, in most cases, any business operating from the land with a lease or similar arrangement. Some public works may also have a short-term impact on a business’s profits.
TAX LAW: Longer to appeal
A recent court of appeal decision affects the future conduct of state tax appeals generally, whether they concern stamp duty, land tax or payroll tax in NSW.
The court of appeal has found that where the Chief Commissioner of Tax refuses to give permission to lodge an objection to a decision after the 60-day period allowed in the tax laws, an objection may still be lodged under another part of the law.
For the person in the case, it kept alive his right of objection and appeal for earlier tax years 1997 to 2004 when he had lodged objections against his assessment for land tax after the 60-day period.
Contact your solicitor for further advice.
FIRST HOMEOWNER GRANT: Penalties if you don’t meet criteria
Current low interest rates and the increase in the government’s first homeowner grant to $21,000 for a new house purchase may be tempting, but you will have to repay the grant if you do not meet the eligibility criteria.
The residency requirement is that you move into the property within 12 months after completion and live there for a continuous period of six months. Read the rest of this entry »
LAND TAX Where is the principal place of residence?
Sourced: Law Society of New South Wales
The most common area of dispute in land tax matters is a person’s entitlement to the principal place of residence exemption, and people should know what sort of supporting evidence they will be expected to produce to claim the exemption.
In convincing the Tax Office of a person’s actual residence, a great deal of emphasis is placed on formal documentation, such as rates and electricity notices, phone bills, driver and boating licences and place of electoral enrolment.
If the principal residence is being renovated, people may move temporarily to a cheaper residence. Some, articularly baby boomers, may own the temporary residence as an investment property. These people would like to continue to claim the exemption on the more expensive property being renovated, but not lived in, and pay land tax on the cheaper.