Published in Property Law & Conveyancing on 22nd Oct 2015
There is long standing discussion surrounding which outgoings are permissible for landlords to pass onto tenants. Generally, whether outgoings can be passed onto the tenant will depend on what has been agreed between the parties in their retail lease agreement. Where it has been agreed that certain outgoings must be paid or reimbursed by the tenant, the landlord must be careful to comply with the obligations imposed by the Retail Leases Act (and associated regulations) in relation to recovering such costs. For example, the landlord cannot pass on outgoings unless it has specified as to the type of outgoings and given an estimate annually to the tenant (section 39 of the Retai...
Published in Wills & Estates on 7th Oct 2015
Powers of Attorney - are yours in place? With recent changes to the laws surrounding Powers of Attorney (“PoA”), it is timely to provide a recap on the different types of PoA available and the importance of proper succession planning. What are PoA? PoA are legal documents that let you appoint someone to make legal decisions on your behalf. Alternatively, you can appoint someone to ‘support’ you to make decisions for yourself. A supportive PoA is primarily for people with disabilities and is not discussed here. PoA can either be enduring or general (non-enduring). Enduring PoA start from a date or time specified by you (or if not specified, immediately) and continue even y...
Published in Wills & Estates on 16th Sep 2015
What happens to your social media when you die? What about Gmail? who gets funds in a Paypal, Skype or gaming account? Do you have a blog? Ebay or Amazon Account? Precious photos kept on Dropbox? What will your online afterlife be like? There are many things to consider when making a will. There are the traditional aspects of a will that most people are familiar with such as: Who the executor will be; Who will be the beneficiaries of your assets, including property, shares or bank accounts; Who will be the legal guardian of any children; and Funeral arrangements. But, have you considered what happens to your social media and Gmail accounts when you die? Would your b...
Published in Technology and Intellectual Property on 24th Aug 2015
Can I use that cat image? Just because an image is publically available on the internet, does not mean it is free. In fact, unless there is a clear statement to the contrary, you should always assume that material found on the internet is copyright protected and therefore requires the owner’s permission in order to be used. This is further complicated by the fact that the image may have been displaced several times and the site on which you have found it may not even have the rights to it. Many believe they can avoid a claim for copyright infringement by merely attributing the work to the source on which they found it with a “shoutout” or link back. Unfortunatel...
Published in Corporate & Commercial on 10th Aug 2015
Can a binding agreement be created over email? In the recent decision of Stellard Pty Ltd v North Queensland Fuel Pty Ltd, The Supreme Court of Queensland held that a binding contract of sale existed where parties had communicated via email and intended to later enter into a written agreement. Stellard Pty Ltd v North Queensland Fuel Pty Ltd North Queensland Fuel (NQF) and Stellard negotiated via email for the purchase of a petrol station. Stellard sent an email to NQF containing the terms of their purchase offer. Notably, a follow up email from Stellard stated “this offer is of course subject to contract” and “[we] need acceptance of our offer immediately so we are in a pos...
Published in Animal Law on 15th Feb 2015
Council Prosecution Nuisance caused by a barking dog can be a public hazard, and your local Council is empowered by the Domestic Animals Act 1994 ("the DAA") and the Public Health and Wellbeing Act 2008 ("the PHWA") to investigate complaints of barking dogs and, in cases where there is a nuisance, fine the offending neighbour or bring criminal charges that can carry heavy penalties. After conducting their investigation into a complaint, the Council will determine if there is a nuisance and decide if it is appropriate to issue an infringement notice under section 85 of the DAA. In more serious cases, the Council may bring criminal charges in the Magistrates Court against the owner of the...
Published in Family Law on 5th Feb 2015
Under the National Energy Retail Law Act, which establishes the National Energy Customer Framework, energy companies are required to have “hardship policies” to assist customers if they fall into arrears, as they may be experiencing hardship such as loss of income, family crises, separation, and family violence. Read the Age’s recent article here. ...
Published in Wills & Estates on 1st Feb 2015
The amendments are designed to give people greater freedom when drafting their Wills, and limit the number of Testator’s Family Maintenance claims (“TFM claims”) that can be brought against someone’s Estate, by requiring the Courts to give greater consideration to the intentions of the Willmaker. Prior to the new Act, people could bring TFM claims in the following circumstances: If they could show that the deceased had a “responsibility to provide” them with maintenance; and If the individual was left without “adequate” or “proper” maintenance. Determining the appropriate amount of provision depended on the factual circumstances of each case. The new Act narrows...
Published in Owners Corporation Law on 27th Aug 2014
But what if your OC or OC committee decides to paint all the window frames in your apartment complex “bright neon pink”? Does the OC have the power to do this? The short answer is “yes”, provided they overcome certain hurdles, and meet certain requirements. A recent VCAT case, namely Mowla v Owners Corporation PS5407083B [2014] VCAT 956 highlighted this issue. Facts Mr Mowla brought an application in relation to certain decisions made by the OC’s committee. One of those decisions was in relation to a border that separated his garden bed (which fell within his title) from an area of lawn (which was common property). The other properties in the development had the same configurat...
Published in Property Law & Conveyancing on 15th Aug 2014
Rudstein Kron Lawyers successfully represented a property developer in two separate proceedings in the Victorian Supreme Court arising out of the same transaction with the same purchaser. The Court’s decision should alert purchasers to do everything reasonably required to secure finance where a Contract contains “subject to finance” provisions. Facts The case concerned a Contract of Sale for an “off the plan” purchase of a residential home in Caulfield South. The Purchasers paid a deposit of $59,500 upon signing the Contract. The Contract was “subject to finance” and general condition 14 of the Contract provided as follows: 14. LOAN 14.1. … this contract is subje...
Published in Family Law on 30th Jul 2014
Other than the fact that Monica and Chandler’s relationship was very brief, and less than the 2 year period prescribed by the Family Law Act 1975 (“the Act”), what is particularly interesting about this scenario is that Monica and Chandler never had sex. This set of facts was very similar to the facts of the recent case, Spencer & Speight [2014] FamCA (“Spencer & Speight”), which Rudstein Kron Lawyers was involved in. In that case, the Court held that you do not need to have engaged in sexual intercourse (or indeed any kind of sexual activity) to be considered to be in a de facto relationship. How does the Court determine if there is a de facto relationship? Sectio...
Published in Owners Corporation Law on 5th Jun 2014
Mr Simpson came to see us after receiving a Notice from the Committee of the Owners Corporation that they had convened a meeting and resolved to strike a special levy of $1.4 million (“the Project Levy”), which was to be spread across blocks A, B and C. His block C, which consisted of 20 lots, was to pay a Project Levy of approximately $500,000 to fund works and repairs. His contribution to the Project Levy alone was approximately $30,000. Mr Simpson was alarmed and contemplated applying for a loan in anticipation of paying the Project Levy. Instead, he came to see us to explore his legal options. We were able to advise that: the amount involved to raise the Project Levy was more...
Published in Employment and Workplace advice on 3rd Dec 2013
Who is eligible to make an application? A new section will be inserted in to the Fair Work Act 2009 (“the Act”) to extend the definition of “worker” to include employees, contractors, subcontractors, outworkers, apprentices, trainees, volunteers and students gaining work experience. When is a worker “bullied” at work? The new laws will provide that a worker is bullied at work if another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety. The implications of this definition are: The behaviour has to be repeated and there must be a “persistent nature” to it. This means that a...
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...
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...
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...
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...
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...
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...
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...