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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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,...
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...
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...
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...
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...
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...
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...
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...