News

Published in Property Law & Conveyancing on 14th Oct 2013

Facts The case concerned the sale of a large parcel of vacant land in Mount Clear (near Ballarat). The purchaser was a property developer and entered into a contract to purchase the land. During the pre-contractual negotiations, the vendor failed to disclose that a young man committed suicide in a forested area on the land two years before the contract was made. After signing the contract, the vendor received an email from the purchaser advising that it had come to its attention that the deceased’s family had been granted permission by the local council to erect a memorial on the land, and wished to contact the deceased’s family to extend condolences. The purchaser did not complain o...

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Published in Property Law & Conveyancing on 10th Oct 2013

In Victoria, section 54 of the Retail Leases Act 2003 provides that a landlord is liable to pay a tenant reasonable compensation for loss or damage because the landlord “fails to take reasonable steps to prevent or stop significant disruption within the landlord’s control to the tenant’s trading at the retail premises”. Facts The case concerned a retail premises in a shopping centre that traded as a “pizza bar”. It is important to note that the lease specified the use of the premises as a “Takeaway Café”. The tenant was struggling to pay rent and fell heavily into arrears. The tenant complained to the landlord that it had fallen into arrears because another tenant was t...

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Published in Family Law on 28th Sep 2013

How does the Court determine if two people are in a de facto relationship? The determination of whether a de facto relationship exists will turn on its individual facts, and the Court looks at each relationship on a case-by-case basis. Section 4AA of the Family Law Act 1975 (“the FLA”) provides some guidance in this area, and defines a de facto relationship as one in which a couple are “living together on a genuine domestic basis” having regard to “all the circumstances of their relationship”. The “circumstances” may include “any or all” of the following factors: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether...

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Published in Owners Corporation Law on 2nd May 2013

Background:  This was a case about balconies. The case concerned an application brought by the owner (“the Applicant”) of a unit that was part of a high-rise apartment building. The majority of units in the apartment building had balconies. However, the Applicant’s penthouse unit did not have a balcony.  It had come to the OC’s attention that:  the balustrading of the balconies were in poor condition and parts of it were at risk of being dislodged; and the balustrading did not comply with building regulation requirements and was designed like a ladder, making it easy for children to climb the horizontal bars.  The OC passed a special resolution to implement and fund a...

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Published in Property Law & Conveyancing on 2nd May 2013

A successful appeal in the New South Wales Court of Appeal has overturned the above decision in Duic v Duic [2013] NSWCA 42. The issues on appeal were, first, whether the son changed his position in reliance on his father’s promises, rendering it unconscionable for the father to go back on those promises and second, if he did, what was the appropriate remedy. Evidence of Reliance The appeal Judge found that the evidence relied upon, namely the witness testimony of the Liberal Councilor for the Ryde City Council, did not sufficiently corroborate the son’s evidence. He had given some evidence about the son effecting improvements to the land, but none about whether the son did that wor...

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Published in Elder Law on 5th Apr 2013

To overcome the obvious human rights issues that this can raise, Parliament enacted the Mental Health Act 1986 (‘the Act’). One of its stated objectives is to “protect the rights of people with a mental disorder” and this ensures that the principles of natural justice and due process are adhered to when a person is detained in a psychiatric ward. The Mental Health Review Board (“MHRB”) The Act establishes the MHRB, whose purpose, amongst other things, is to hear appeals made by, or on behalf of, involuntary patients and to review periodically the orders made for involuntary patients and their treatment plans. When someone is admitted into a psychiatric ward involuntarily, th...

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Published in Building Disputes on 5th Apr 2013

The purpose of the Act is: “to address delays in payment under construction contracts to parties who carry out construction work”. The Act provides a mechanism for the quick recovery of debts through the use of payment claims and progress schedules. Does the Act apply to you? If you are in the construction business, the Act may apply to you as the Act defines construction work in broad terms including, amongst other things: any work, or related goods and services, that is involved in the construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of buildings or structures, or to form, part of the land (whether permanent or not); and the ins...

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Published in Employment and Workplace advice on 3rd Apr 2013

The case law suggests that the relevant test is whether there is a “sufficient nexus” between the employee’s actions and their employment. In any event, it is difficult to discern any predictive principles as each situation will be assessed on a case-by-case basis. This article will provide an overview of cases that illustrate this issue in practice. Public Employment Office Department of Attorney General & Justice v Silling [2012] NSWIRComm 118 Mr Silling was employed as a corrections officer by the Department of Corrective Services. Mr Silling was dismissed after his third conviction for domestic violence. After the first conviction in 1998, Mr Silling received an official w...

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Published in Employment and Workplace advice on 25th Mar 2013

Requests to work from home Section 65 of the Fair Work Act 2009 (“the FWA”) allows an employee who is a parent or who cares for a child to request a change in working arrangements where the child is under school age. However, an employer may refuse the request on “reasonable business grounds”. Furthermore, an employee may only request to work from home if they have served a minimum period of 12 months of employment service. The FWA does not define “reasonable business grounds”, however a number of factors may be considered, including: whether the work is required to be carried out “on-site”; the effect that the arrangement may have on the employer’s business; the...

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Published in Owners Corporation Law on 3rd Mar 2013

A common challenge facing owners corporations and strata companies today is the difficulty in striking the right balance between ensuring the security of its members, and not breaching their rights to privacy. The implications of installing CCTV cameras in common areas such as foyer entrances, car parks and lift access areas are vast, and owners corporations and strata companies alike need to be diligent with respect to the implementation and use of such devices, to ensure they are not being used improperly. 1. Surveillance Devices Act 1999 (“the Act”) Section 7 of the Act provides that a person (which includes a body corporate) must not knowingly install, use or maintain an optical...

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Published in Owners Corporation Law on 17th Jan 2013

However, in the New South Wales case of Owners Corporation Strata Plan 61288 v Brookfield Multiplex [2012] NSWSC 1219 (“the Brookfield case”) the Owners Corporation plaintiff (“the OC”) was unable to sue a builder for alleged defective works contained in a serviced apartment scheme. This is because its contractual rights had expired (and the common law doctrine of privity applied), it did not have the benefit of the statutory warranties under the Home Building Act 1989 (“the NSW Act”), and the builder did not owe it a common law duty of care. Background The Brookfield case concerned a development of a serviced apartment complex. The registered proprietor and developer of the...

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Published in Family Law on 10th Oct 2012

The doubt over the constitutional validity of the bill appears to have been its undoing, with speakers against the bill speculating that the law may be inoperative because it is inconsistent with the Commonwealth Marriage Act. The general consensus was that a High Court challenge was inevitable, which would be costly and time-consuming. Unfortunately, the answer to whether a state law permitting same-sex marriage would be inoperative or invalid will not be known until such a challenge is brought before the High Court. Attention has now turned to South Australia where it is expected that a same-sex marriage bill will be introduced to Parliament early next year. This article provides infor...

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Published in Property Law & Conveyancing on 20th Sep 2012

This article aims to provide an outline of the various options that may be available to you. Changing the terms of your mortgage Any person who is experiencing financial hardship has the right to apply to their mortgagee to change the terms of their mortgage under the Code of Banking Practice or the Mutual Banking Code of Practice. Most lenders are signatories to the Codes and are therefore bound by the obligations prescribed. You might also be eligible to vary the terms of your mortgage under the hardship provisions of the National Consumer Credit Protection Act 2009 (“the new Code”) (see below). The three-tier system of dispute resolution The new Code has introduced a three-tie...

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Published in Family Law on 17th Sep 2012

Unless your property settlement is documented in Consent Orders (and approved by the Family Law Courts) or a Binding Financial Agreement, it is an “informal property settlement” and it is not legally binding. Whilst there is no law preventing you from making an informal property settlement, it means that you are vulnerable to your former spouse or partner making an application to the Family Law Courts for a greater share of the property pool in the future. This means that months or years down the track, even after you may have re-partnered or purchased new property, your former spouse or partner can come back for “another bite”. We recently acted for a client whose former spouse...

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Published in Family Law on 9th Sep 2012

On 30 August 2012, Tasmania made the news headlines when its lower house of Parliament became the first in Australia to pass a bill to legalise same-sex marriage when the Same-Sex Marriage Bill 2012 was passed by 13 votes to 11. There has been some heated debate over the constitutional validity of laws made by states and territories pertaining to same-sex marriage. The prevailing view appears to be that while the states and territories have the power to legislate on same-sex marriage, any laws made may be invalid or inoperative to the extent that they are inconsistent with the federal Marriage Act 1961. Ultimately, the question is one for the High Court to answer. Tasmania’s upper hous...

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Published in Dispute Resolution & Litigation on 24th Jul 2012

Consequences of Non-Compliance with Subpoena Failure to comply with a subpoena within the timeframe provided for without lawful excuse is a contempt of court and may result in your arrest. Objecting to Compliance with a Subpoena Upon being served with a subpoena, the recipient of the subpoena, or a person who has a sufficient interest in objecting to the subpoena, has the right to apply to the Court: for an order setting aside the subpoena (or part of it) or for relief in respect of the subpoena; and for an order with respect to your claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the subpoena. To object to a...

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Published in Employment and Workplace advice on 13th Jul 2012

Facts Mr Symes was a long-term employee at Armaguard, who had worked his way up to the position of a crew leader. His duties included transporting cash to and from clients’ premises and servicing ATMs. After suffering a workplace injury, he was effectively demoted and placed on light duties pending his full recovery. He was informed that, due to the amount of time it was taking Mr Symes to do his runs he would remain in this position until his performance improved. At one of Armaguard’s regular monthly staff meetings, Mr Symes was informed that he had been allocated a vehicle with a faulty indicator. Frustrated and angry that this would cause delay in his work duties, Mr Symes told h...

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Published in Wills & Estates on 13th Jul 2012

We recently acted for a client whose elderly spinster aunt, for whom she had provided care for many years, wished to make a new Will.  Her aunt did not like leaving the house and so, to make the process easier for her, the niece purchased a Will kit.  After asking what she wished to include in her Will, the niece hand wrote the Will, and then arranged for two friends to come to the house to witness the signing of the document.  The provisions of the Will were fairly simple and were clearly articulated – the niece was appointed executor and was to receive most of the estate if another elderly relative predeceased the aunt.  The Will was duly signed and our client and her aunt thought...

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Published in Property Law & Conveyancing on 23rd Jun 2012

What facts gave rise to this bizarre situation? Zhou owed a civil debt of about $100,000 to a creditor (“Wu”), who had obtained a judgment order to recover the debt. In reliance of that order, and upon Wu’s application, the Supreme Court issued a Warrant of Seizure and Sale, which led to the Sheriff’s sale of the property. At the first auction, the Sheriff had set a reserve price of $171,615.76, representing Zhou’s remaining equity in the property. The purchaser would have also needed to pay out the bank loan. The first auction was a failure in that no bids were received and the property was passed in. On application by the Sheriff, the Supreme Court allowed the Sheriff to sel...

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Published in Family Law on 19th Jun 2012

It is our experience that the earlier you meet with a lawyer, the better positioned you will be to take advantage of the alternative dispute resolution processes available, such as mediation and collaborative practice, and most likely avoid costly Court proceedings. There are significant benefits, both financially and emotionally, in using alternative dispute resolution including: the processes are more private, informal, timely and cost-effective than Court proceedings; you and your former partner can negotiate an outcome that meets the needs of all involved, including the needs of your children; the focus is not on “winning” or “losing” but on what is “fair” and “reas...

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