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...
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...
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...
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...
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...
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...
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...
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...