News & Publications
Local Councils and Tree Root Claims
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- Published on Monday, 21 May 2012 08:00
- Written by Steven Soldatos
Historically, in the course of beautification projects around Melbourne, many local city councils planted trees on council property that were close to residential homes. In some circumstances, homeowners are beginning to experience negative consequences as a result.
Family Court does not have power to prevent abortion
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- Published on Thursday, 12 April 2012 09:37
- Written by Danielle Roberts
In the recent case of Talbot & Norman [2012] FamCA 96 (“Re Talbot”), the Family Court held that it does not have the jurisdiction or power to restrain the mother of an unborn child from aborting that child.
Mr Talbot and Ms Norman had a short relationship and were never married. At the time of the hearing Ms Norman was approximately 13 weeks pregnant with Mr Talbot’s child. Mr Talbot filed urgent court proceedings in the Family Court seeking an injunction to restrain Ms Norman from aborting the child. Mr Talbot and Ms Norman were not legally represented.
When the State makes decisions for the elderly
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- Published on Thursday, 29 March 2012 04:51
- Written by Michael Knopf
It can be a shock to the elderly who have lived independent lives to suddenly find that the Victorian Civil and Administrative Tribunal (“VCAT”) is involved in making decisions as to their finances and residence because they may have come to the attention of social workers whether hospital or, in respite care, who then form a view that they cannot look after themselves. In that circumstance, the social worker may bring an Application to VCAT, asking for someone else to look after their affairs and seeking the appointment of a Guardian and/or Administrator.
Disputes about Care of the Elderly
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- Published on Thursday, 29 March 2012 04:02
- Written by Michael Knopf
Frequently, the care of elderly relatives ends up falling to one person within a family – including husbands for wives and wives for husbands. Perhaps you are a carer for an elderly person because you are the one who lives close to the person who needs some looking after. Perhaps you are the only one with the time or energy to devote to their care.
On the other hand, there will probably be other relatives or friends of the person who you are looking after who feel unhappy that they are not able to do more to care for that person.
The Legal Rights of those with Dementia
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- Published on Thursday, 29 March 2012 01:51
- Written by Michael Knopf
A medical diagnosis of dementia can be personally devastating but its legal consequences can be unduly exaggerated. A medical diagnosis does not constitute the last word about someone’s legal capacity to make decisions – lawyers have their own guidelines by which to make judgments about someone’s capacity to give legal instruction.
The issue is not the diagnosis of dementia, but whether the person suffering from dementia has reasonable views and can express them. In the earlier stages of dementia, people can still function well in the community. In later stages, sufferers can still be capable of expressing reasonable views about what they would like to happen.
Buyer beware: what it really means when something is described as “Brand New”
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- Published on Monday, 26 March 2012 06:54
- Written by Dominique Mavroyeni
Under the Australian Consumer Law and its predecessor, the Trade Practices Act 1974 (Cth) (“the TPA”), it is unlawful to make representations in trade or commerce which are “misleading or deceptive”.
The Federal Court case, Mercland Investment Group Pty Ltd v Duncalm Pty Ltd [2012] FCA 183, explored the implications of describing something on the market as “brand new” and analysed the circumstances in which vendors are under an obligation to disclose information pertaining to the quality of goods and property.
Medical panel determinations are invalid if they are delayed
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- Published on Monday, 19 March 2012 06:32
- Written by Steven Soldatos
Mikhman v Royal Victorian Aero Club & Ors [2012] VSC 42
Before an injured party can claim for damages for personal injury under the Wrongs Act 1958 (Vic) (“the Act”) the injured party must establish that their level of impairment satisfies the required injury threshold. Where the parties to the dispute cannot agree to the level of impairment, a Medical Panel (“the Panel”) is constituted to independently assess the injured party.
Irrevocable promises: why not to make promises you cannot keep
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- Published on Wednesday, 07 March 2012 22:36
- Written by Steven Soldatos
Duic v Duic [2012] NSWSC 76
A recent decision made by the Supreme Court of New South Wales confirms the rule that where a promise has been relied upon to one’s detriment it becomes irrevocable and the court of equity may step in to enforce the promise.
Cooling off rights for purchasers of real estate: independent legal advice exception removed
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- Published on Wednesday, 29 February 2012 18:41
- Written by Kate Murphy
From 1 March 2012, purchasers who obtain legal advice prior to entering into a Contract of Sale will no longer lose their cooling off rights.
This small but important amendment to section 31 of the Sale of Land Act 1962 is one of many improvements to consumer rights contained in the Consumer Affairs Legislation Amendment (Reform) Act 2010.
Should you have a Binding Financial Agreement?
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- Published on Friday, 17 February 2012 06:50
- Written by Danielle Roberts
Picture this, Sally is a 32 year old school teacher and while she is not wealthy, she worked hard and saved the deposit for her own house at the age of 26. Sally has been committed to paying off her mortgage ever since. On Sally’s 30th birthday she met Greg, a 34 year old builder, and fell in love. Recently Greg asked Sally to marry him. She is excited, in love and cannot wait to start her life with Greg, but there is one small problem. Greg has spent his life travelling the world, he has no assets to his name and he has his bags packed to move in to Sally’s house.
Deceitful selling
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- Published on Thursday, 12 January 2012 12:02
- Written by Steven Soldatos
You are selling your house, its inspection time and you are thinking ‘time to spruik up the house, seal the cracks, fill the holes and give it a coat of fresh paint’. Well, think again. A recent case in New South Wales (Wood v Balfour [2011] NSWCA 382) indicates that the courts might not always look at property cases along the lines of ‘buyer beware’ and any attempts made by a Vendor to conceal defects in a property at inspection time could give rise to claims of misrepresentation, misleading or deceptive conduct and deceit.
Recent changes to the taxation of trusts: trustees given the power to stream capital
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- Published on Wednesday, 14 December 2011 22:13
- Written by Steven Soldatos
There have been recent changes to the taxation of trusts by the Tax Laws Amendment (2011 Measures No. 5) Act 2011 which enable the streaming of capital gains and franked distributions to beneficiaries of a trust for taxation purposes.
Landlords beware when varying retail leases
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- Published on Wednesday, 14 December 2011 21:54
- Written by Simon Ezekiel
Tenants may request changes or “variations” to their existing Leases for various reasons. A common reason is to extend their tenancy by increasing the duration of the term or inserting additional options for further terms. If agreed to by a Landlord, the change is implemented by way of a document known as a “Deed of Variation of Lease”.
Property and GST – Applying GST correctly when dealing with property
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- Published on Tuesday, 15 November 2011 10:48
- Written by Simon Ezekiel
When buying or selling a property, especially one of a commercial nature, it is important to consider any GST implications that may arise in addition to your other tax obligations. The potential to attract ten percent (10%) on the purchase price of a property deserves consideration.
Subpoenas and counsellors in family law
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- Published on Thursday, 20 October 2011 13:24
- Written by Michael Knopf
When do counsellor’s notes and records remain private?
This article is about what happened when the notes of a couples’ counsellor were subpoenaed to Federal Magistrates Court. The issue in dispute was whether the counsellor’s notes were able to be used in Court?
The importance of loan documents
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- Published on Tuesday, 04 October 2011 04:19
- Written by Simon Ezekiel
Vouzas & Anor v Sibonna Nominees Pty Ltd [2011] VSC 261
In Vouzas & Anor v Sibonna Nominees Pty Ltd [2011] VSC 261 (“Sibonna”), Sibonna lent money to a potential business partner, “Vouzas”. The debt was to be secured by a mortgage over Vouzas’ parents’ property in Albert Park, Melbourne and the terms of the loan was evidenced by emails and correspondence between Vouzas and the director of Sibonna. The mortgage was subsequently registered with the Land Titles Office and Sibonna believed that this together with the correspondence was sufficient to secure the debt.
Relationships and your will: the law in Victoria
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- Published on Monday, 26 September 2011 23:14
- Written by Danielle Roberts
Your Will is an important legal document that directs how your estate, which includes real property, cars and personal belongings, is to be dealt with after your death. If you are over 18 years of age and are of sound mind then you should make a Will.
In Victoria, the nature of your relationships may affect how your estate is distributed and therefore you should review your Will regularly, especially if any of the following occurs/applies:
Prescription glasses and GST: a decision of the Federal Court
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- Published on Monday, 26 September 2011 22:56
- Written by Simon Ezekiel
The Federal Court has provided greater certainty by solving the inherently circular provision of section 9-80 of the GST ACT
In Commissioner of Taxation v Luxottica Retail Australia Pty Ltd [2011] FCAFC 20 the court demonstrated how it is willing to interpret an unworkable provision in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“the GST Act”) by applying the agreement as reached between the parties to an arms-length transaction as the basis for interpretation.
Register your goods or you could lose them: Personal Property Security Registration System
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- Published on Tuesday, 13 September 2011 04:46
- Written by Simon Ezekiel
The new Personal Property Security (PPS) registration system will now commence on 30 January 2012.
If you:
- sell goods on consignment
- sell goods with serial numbers, including motor vehicles
- supply goods using hire purchase agreements or lease arrangements
- supply goods under retention of title agreements
Then you need to register your interest on the PPS register or risk losing ownership of your property.
When a marriage is not a marriage: a case of duress
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- Published on Thursday, 11 August 2011 12:19
- Written by Zelma Rudstein & Danielle Roberts
In the recent case of Robert & Golden [2011] FamCA 443 the Family Court of Australia (“the Court”) held that the marriage between Mr Robert and Ms Golden was null and void.
A declaration that a marriage is null and void, also known as a declaration of nullity, is a finding by the Court that the marriage was invalid. This means that the marriage is regarded as having never taken place, even though a marriage ceremony may have taken place. A court may declare a marriage to be null and void on a number of grounds, including as Mr Roberts claimed, where one party claims to have been forced into the marriage under duress.