News

Published in Property Law & Conveyancing on 21st May 2012

However, as the invasion of Council tree roots onto private property and their extraction of moisture causing damage can be deemed at law to be an actionable “nuisance”, you may be entitled to compensation if you have suffered loss from Council tree roots. Nuisance can be briefly described as a civil wrong whereby one person (or entity) has interfered with your enjoyment and use of your land or has interfered with its physical condition. As your local Council owns the trees on Council property, it has a duty to take steps to eliminate the risk of damage caused by Council tree roots which is reasonably foreseeable. While Victorian Councils may have some defences to a tree root claim,...

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Published in Family Law on 12th Apr 2012

The Family Court found that Mr Talbot’s application had no factual basis when Ms Norman gave evidence that she had no intention to terminate her pregnancy and his application was dismissed. Still, Justice Murphy went on to consider whether the Family Court had the power or jurisdiction to grant the injunction sought by Mr Talbot, and found that in the circumstances the Family Court had no such power. The injunction sought by Mr Talbot was directed towards Ms Norman, but was in respect of the unborn child. The parties never married The fact that the parties had never married was very relevant. In a much earlier case, In the Marriage of F (1989) FLC 92-031 (“Re F”), the Family Cou...

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Published in Competition and Consumer Law on 26th Mar 2012

Background Mercland Investment Group (“Mercland”) entered into a Contract of Sale with Duncalm Pty Ltd (“Duncalm”) for the purchase of a parcel of land comprising a petrol station and a variety of fast-food outlets (“the Service Centre”). Before its sale Duncalm engaged engineers to advise on the design of the car parks and driveways. Not all the specifications stipulated in the designs were followed. In fact, inferior materials and construction methods were used to cut down on costs. This made the pavements more susceptible to damage and caused the concrete to break upon pressure. The decision to construct the car parks and driveways in this way rendered them unsuitable for...

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Published in Administrative Law on 19th Mar 2012

In Mikhman v Royal Victorian Aero Club & Ors [2012] VSC 42, the plaintiff had obtained a report from her psychiatrist that she had suffered psychological injuries above the required injury threshold as a result of witnessing a plane crash to the ground with fatal consequences only metres from her and her family. The Royal Victorian Aero Club disputed the psychiatrist’s assessment. Consequently, the Panel assessed her injuries and found, contrary to the assessments of the treating psychiatrist, she did not satisfy the threshold level of impairment required by statute. The plaintiff appealed the decision and alleged that the Panel erred in: failing to make its determination within...

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Published in Property Law & Conveyancing on 7th Mar 2012

In Duic it was held that a father’s promise that his property would belong to his son was an irrevocable promise. As a result the Court ordered Josip, (‘the father’) to transfer the property to Emil (‘the son’). Facts The father was the registered proprietor of a property that was used by the son to operate a radiator service business. The father assisted the son in the business for part of the time. Following a disagreement between the two, the son allegedly forced the father out of the property and the father brought an action seeking possession of the property. The son cross-claimed on the following grounds: That the property formed part of partnership assets of radiator...

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Published in Property Law & Conveyancing on 29th Feb 2012

Previously, purchasers who consulted with a solicitor about their proposed purchase before signing the contract did not have the right to withdraw from the contract.  This contrasted with the rights of those who sought advice from a licensed conveyancer or those who did not seek advice at all, who were able to exercise their cooling off rights within three clear business days after signing the contract. Purchasers will now be able to end the contract within 3 clear business days of the day the contract is signed, unless one of the following exceptions applies: they bought the property at or within 3 clear business days before or after a publicly advertised auction; the property is us...

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Published in Family Law on 17th Feb 2012

The scenario above depicts the increasing trend of marrying later in life, which comes hand in hand with the issue of one person having accumulated more financial assets than the other. This is where the issue of a Binding Financial Agreement (also known as a “pre-nuptial agreement”) becomes a hot topic. A Binding Financial Agreement is an agreement between a de facto or married couple that sets out how property and finances will be dealt with should their relationship break down. It allows couples to have control and certainty as to their financial futures and to protect their individual assets.  If you are in a similar situation to Sally, it is likely that suggesting a Binding...

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Published in Property Law & Conveyancing on 12th Jan 2012

The case of Wood v Balfour  Wood had purchased property from the Balfour that had extensive termite damage, the cost of which to repair exceeded $200,000.00. Wood brought an action against Balfour alleging that Balfour had knowingly concealed the termite damage a couple of years prior to the sale and remained silent during the inspection process. Dishonesty  The matter revolved around the concept of dishonesty. If it was found that Balfour ‘was dishonest’ in patching up the damage caused by the termites and ‘dishonest’ in failing to notify Wood of the termite infestation then his conduct would be found to have been fraudulent and Wood would have been successful in his...

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Published in Property Law & Conveyancing on 14th Dec 2011

Prior to the amendments, any capital gain realised by the Trustee and distributed to the beneficiaries would have been ‘blended’ with different types of income. Now the Trustee will have the power to distribute capital gains to the beneficiary and the gain will maintain the same ‘character’ when the beneficiary is assessed as they had in the hands of the Trustee. To take advantage of these amendments, the Trust Deed may need to be varied to give the Trustee the power to stream these distributions. We recommend that you revisit your Trust Deed to ensure that it defines income appropriately and provides the power to the Trustee to distribute capital gains and franked distributions t...

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Published in Property Law & Conveyancing on 14th Dec 2011

In the recent case of Richmond Football Club Limited v Verraty Pty Ltd (ACN 076 360 079) (Retail Tenancies) [2011] VCAT 2104 (3 November 2011), the Tribunal held that in certain circumstances, a Deed of Variation may constitute a surrender (or termination) of the original Lease and re-grant of a new Lease. In this case, the Landlord was unaware of the ramifications of varying the original Lease and ultimately had to refund monies paid by the Tenant in relation to land tax.  The Tribunal’s decision may cause similar problems for other Landlords who agree or have agreed, after the introduction of the Retail Leases Act (“the Act”) in 2003, to vary Leases entered into prior to 2003...

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Published in Property Law & Conveyancing on 15th Nov 2011

GST on the sale of a property When selling a property, the sale may fall under one of three broad supply categories: Taxable supply – the Seller is liable for GST on the sale and can claim GST credits for anything purchased or imported to make the sale (ie. the GST paid on Real Estate Agent fees); GST-free supply – the Seller is not liable for GST, but can still claim GST credits for anything purchased to make the sale; Input Taxed supply – the Seller is not liable for the GST on the sale and cannot claim any GST credits. Steps to determine under which category your sale falls To determine the application of GST on your property the following needs to be explored: Are yo...

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Published in Wills & Estates on 26th Sep 2011

You get married; You enter into a domestic relationship; An executor and/or beneficiary of your Will dies; You have children or grandchildren (including biological, step or adopted); and You and your spouse separate or divorce. If you die without a valid Will, your estate will be divided in accordance with the statutory provisions under the Administration and Probate Act 1958 (Vic) (“the Act”). This means you have no control over how your estate is distributed and those whom you wish to receive benefits from your estate may not receive anything. Further, if you die without amending your Will to reflect changed circumstances, the distribution of your estate may not reflect your i...

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Published in Corporate & Commercial on 26th Sep 2011

Background Luxottica Retail Australia Pty Ltd (“Luxottica”) owns subsidiaries such as OPSM and Budget Eyewear and deals in eye-wear and eye-care. Luxottica, and its subsidiaries, promoted the sale of frames for glasses at a discount on the condition that the customers purchase the lenses that fit the frames at full price. Under the Act the supply of lenses is considered a GST-free supply while the supply of a frame is considered a taxable supply. A dispute arose as to the correct application of GST on the promotion. The inherent circularity of section 9-80 Section 9-80 of the Act contains the equation used to determine the GST payable on mixed-supplies; that is supplies that contai...

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Published in Property Law & Conveyancing on 13th Sep 2011

How to register your security interest You will be able to register your security interest online once the registry becomes available at www.ppsr.gov.au. The idea is that once you register your interest on the register then you are able to claim ownership of your property in the event that the party with possession is unable to pay up or goes into liquidation. Failure to do so means that you could lose your property to other registered interests. A similar registry has been in force in New Zealand with some remarkable results that highlight the importance of registering your assets. Two recent examples from New Zealand In Graham and Gibson v Portacom New Zealand Ltd [2004] 2 NZLR 52...

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Published in Animal Law on 31st Aug 2011

Well, you may ask, what legal protection is afforded to animals in Victoria? How can we protect, for example, our much loved canine companions? Dogs are, as with any other domestic animal, entitled to live a comfortable life, free from abuse. Pursuant to the Prevention of Cruelty to Animals Act 1986 (“the Act”) it is an offence to allow your animal to experience unreasonable pain or suffering or to fail to meet their daily needs, for example access to proper and sufficient food and water, veterinary treatment and shelter. All dog owners should be aware of the specific health, diet and exercise requirements of their particular breed of dog, so that their dog’s needs are met. The Cod...

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Published in Family Law on 11th Aug 2011

Ms Golden did not appear in the matter before the Court and she did not file any evidence in response to Mr Robert’s application to have the marriage declared null and void. Mr Robert’s evidence was that in about September 2010 Ms Golden informed him that she was pregnant. Mr Robert responded by asking her to terminate the pregnancy as “we don’t want a child”. Importantly, Ms Golden is said to have stated “I’m possibly not going to terminate the pregnancy unless you marry me”. Mr Robert’s evidence was that he only consented to marrying Ms Golden because he felt he had no other choice in that Ms Golden was adamant that she would not terminate the pregnancy unless they wer...

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Published in Collaborative Law on 13th Jun 2011

The adversarial battle field Traditionally, when one or both parties come to the decision that they are unable to agree about property division and/or issues concerning their children, they seek resolution through the court system. Although family law requires the parties to make a genuine effort to resolve their disputes either by direct negotiation or mediation, it is not uncommon that the lack of trust and goodwill between parties after a relationship breakdown makes resolving the issues difficult. Therefore it left to the parties’ lawyers to negotiate on their behalf. Once the parties have retained lawyers to “fight” for their perceived entitlements, the adversarial process take...

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Published in Employment and Workplace advice on 3rd Jun 2011

Dubbed "Brodie's Law", the Bill has now passed both Houses of the Victorian Parliament and will take effect in early June 2011. What has changed? Workplace bullies will now be dealt with under the criminal law. The Bill extends the definition “stalking” in the Crimes Act 1958 (Vic), the Stalking Intervention Orders Act 2008 (Vic) and the Personal Safety Intervention Orders Act 2010 (Vic) to include the following behaviours that are typical of workplace bullying: making threats to the victim; using abusive or offensive words to or in the presence of the victim; performing abusive or offensive acts in the presence of the victim; directing abusive or offensive acts towards the vic...

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Published in Migration on 30th May 2011

The laws and processes surrounding migration are complex and require careful consideration and a depth of understanding. Zelma Rudstein, partner of Rudstein Kron Lawyers, has thorough knowledge of the latest visa and migration laws and regulations, and can expertly guide you through the process from beginning to end, including providing detailed advice, preparing application forms, supporting documents and submissions and lodging applications. She has been helping people to achieve their goal of living permanently in Australia since 1993. Zelma is a qualified practising lawyer and a registered Migration Agent (MARN 9301002). She adheres to the Migration Agents Registration Authority's Cod...

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Published in Family Law on 25th May 2011

Biotechnological advances have posed a challenge to the laws of property (ownership and control) because the laws of property were made wellbefore methods of assisted reproductive technology were conceptualised and developed. These scientific developments will no doubt see our courts and law makers confronted with complex questions concerning legal interests in human biological materials, such as sperm, embryos and cells. In other words, this unusual case is likely to become far less unusual within the next few years. The relationship between Jocelyn and Mark Edwards Jocelyn and Mark Edwards were married in November 2005 and they planned to have children soon after. In 2008, when Ms Edwa...

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