The Building and Construction Industry Security of Payment Act 1999 (NSW) (“Act”) can be a powerful tool for subcontractors to use when seeking payment for work performed and materials supplied from non-paying or late paying builders.
When work has been performed or materials supplied entitling a subcontractor to make a claim for a progress payment under a subcontract, the subcontractor can serve a “payment claim” (a complying invoice) on the builder. Under the Act, the builder then has 10 business days to issue a “payment schedule” to the subcontractor setting out the amount of the payment claim it intends to pay. The builder has to set out also the items it does not propose to pay and its reasons for non-payment. The items in dispute can then be referred for adjudication.
If the builder fails to issue a payment schedule in time it becomes liable to the subcontractor for the full amount of the payment claim. That is the case even if the builder has contacted the subcontractor by telephone or email to raise issues about the work or materials within that period. If the subcontractor is not then paid the amount of the payment claim, he or she can sue the builder for the amount as a debt due to the subcontractor.
Significantly, the Act prevents the builder from cross claiming against the subcontractor in those proceedings or putting up a defence about matters arising under the subcontract. The builder’s hands are tied. It will likely have to pay up the subcontractor in full plus any interest and legal costs, and then sue the subcontractor separately for any counter claim. That is expensive and time consuming and a distraction from the builder’s business.
Of course, a subcontractor has to think very carefully before taking such steps because of the risk of causing long term damage to the relationship with the builder.
For subcontractors, clearly itemised invoices that inform builders that there are payment claims under the Act are important. For builders, efficient contract management processes are vital.
At Everingham Solomons, we have the knowledge and experience to advise builders and subcontractors on these and other aspects of the Act because Helping You is Our Business.
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The ability to choose who you leave your property to in your Will has been tempered by legislation that permits eligible persons (as defined by legislation) to apply to the Court for a greater share of a deceased person’s estate where “adequate” provision has not been made for their “proper” maintenance, education and advancement in life”.
A recent NSW decision upheld the wishes of a Willmaker and dismissed the application of two children seeking a greater share of their mother’s estate.
The Willmaker died in 2014 leaving a Will made a little over one month before she died. The Willmaker was survived by her two adult children. Under the Will, the Willmaker left:
her daughter half of her personal effects and $250,000;
her son half of her personal effects and $190,000;
a friend and carer, her household contents (not including personal effects) and the right to use her car for one year from the date of her death; and
the rest of her estate was left to the proprietor of a complementary healing and training association.
The Willmaker died leaving an estate worth $1.1 million. Her children contested the Will.
In the year preceding the Willmaker’s death when she was diagnosed with a terminal illness she had assets in the order of $2.2 to $2.3 million but she had gifted $800,000 to the proprietor of a complementary healing and training association and $60,000 to her son before her death.
The Court found in evidence that the Willmaker had “carefully considered how she should dispose of her estate. She weighed up the competing considerations for her bounty” and she had in any event made provision for her children in her Will albeit her children wanted more. The evidence revealed that the Willmaker had discussed her testamentary wishes with both of her children before she died and asked each of them to respect her wishes and not challenge her Will.
The question for the Court was whether the provision made for the children in the Will was adequate? Both children would doubtless benefit from greater provision than that which has been made for them in the Will but “To remodel the Will because the judge thought that some additional provision would be fairer, would pay no more than lip service, or not even that, to respecting a capable testator’s judgment where it appears that a reasonable judgment has been made. …”.
If the Court had granted the order sought by the children the effect would have been after payment of costs for the estate to go to the children to the exclusion of the other beneficiaries named in the Will thereby leaving the Willmaker’s wishes unfulfilled.
The Court concluded that the children failed to demonstrate that adequate provision had not been made for them by the Will and the application was dismissed.
At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs including making or updating your Will because Helping You is Our Business.
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Suppose Johnny has in his possession 6 grams of methamphetamine.
3 grams is the trafficable quantity of methamphetamine. As Johnny has twice that amount, he is deemed to have the drug in his possession for supply, unless he can prove that he had it in his possession for a reason other than supply.
WHAT IS SUPPLY?
Supply has a broad definition and includes:
selling and distributing;
agreeing to supply;
offering to supply;
sending, forwarding, delivering or receiving for supply;
or authorising, directing, causing, permitting or attempting any of those acts or things.
(Drug Misuse and Trafficking Act 1985 (NSW) s3)
WHAT WILL HAPPEN TO JOHNNY?
If Johnny is convicted of supplying a prohibited drug the sentence he receives will be dependent on the range of factors outlined in (s21A of the Crimes Sentencing Procedure Act 1999) and the appropriateness of each sentencing option in holding Johnny accountable for his actions, protecting the community and deterring the commission of similar offences.
The maximum penalty Johnny could face is a fine of 2000 penalty units ($200,000), imprisonment for 15 years, or both.
If you have been charged with a drug related offence the Solicitors at Everingham Solomons can assist you in preparing and presenting your case to obtain the best possible result because Helping You is Our Business.
Last December, the NSW Premier, announced a number of changes to the Road Rules Act (NSW) 2014 that commence on 1 March 2016. These changes affect cyclists, motorists and pedestrians and can be broadly split into three categories.
Drivers must give cyclists at least 1 or 1.5m of space. When driving past a cyclist in a 60kmph zone you must allow 1m and if its a100kmph zone, 1.5m must be allowed. To ensure the proper space is left for the cyclist, as long as a driver has a clear view of oncoming traffic, the driver is allowed to do a number of other things such as drive on painted islands and cross to the incorrect side of the road.
Cyclists over 18 must carry photo identification. The form of the required photograph for identification is unclear at the moment. The legislation does not appear to require a driver’s license or an RMS identification card, however this will need to be clarified.
Increased penalties for cyclists. These fines will increase so that they are in line with offences committed by motorists/motorbike riders:
not wearing a helmet $171 to $319;
running a red light $71 to $425;
riding dangerously $71 to $425;
holding onto a moving vehicle $71 to $319;
not stopping for pedestrians $71 to $425.
These are some of the increases and there are many others but those outlined above include the major changes.
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
Mr Yee passed away on 28 May 2013 and left two Wills.
The earlier Will was prepared by a solicitor and was dated 21 February 2013. (‘the earlier Will’). Under the earlier Will some property was left to the Mr Yee’s wife if ‘the marriage has not broken down’.
There was a later Will prepared by Mr Yee without professional assistance. That Will was dated 1 May 2013 (‘the later Will’).
The later Will commenced ‘I hereby revoke all former Wills previously made by me and declare this to be my last Will and testament’. It then went on to make a number of gifts largely consistent with the earlier Will, but, at issue in the proceedings, went on to say:
‘My wife Darunee Jarat is not a wife, even though we legally married, she was here to take all my money and assets…She cheated and lied about herself and why she stayed in Thailand… We found evidence of her still communicating with Vinnie.’
However, not being professionally drafted, the later Will did not deal with all of the estate’s assets. If the later Will was admitted to probate, parts of the estate would be dealt with in intestacy (which is the law that applies where estate property is not dealt with under a Will). The effect of the intestacy would have been to give some of the estate’s property to Mr Yee’s wife.
As this appeared to be what Mr Yee was trying to avoid in drafting the later Will, the Court was left in a quandary to choose between what it thought Mr Yee intended and what the later Will actually said.
Ultimately, the court said that the revocation clause used in the later Will was a ‘formal expression of a layman intended to make a testamentary instrument to prevail over the earlier Will to the extent of any inconsistency.’ The Court said that Mr Yee did not intend to revoke the earlier Will. The later Will was, in effect, an addition to it.
Accordingly, the court admitted to Probate a version of the earlier Will subject to the modifications made by the later Will. The wife did not receive any immediate gift under the estate.
If you require assistance with drafting, interpreting Wills and dealing with estate issues, contact Everingham Solomons because Helping You is Our Business.
Where a capable Testator makes a Will that complies with formal requirements there is a presumption that the Testator knows and approves of the contents of the Will, but that presumption does not apply where the making of the Will is clouded by suspicious circumstances. For example where a Will has been prepared by a beneficiary this will raise suspicion as to whether the Testator knew and approved of its contents. Where suspicious circumstances exist the onus is on the person propounding the Will to prove not only its due execution but that that the Testator who signed the Will also knew and approved of its contents.
In 2013 a 93 year old Testator signed a Will that was prepared for him by his neighbour. The neighbour was appointed the executor of the Will and the net estate was left to the executor neighbour’s wife. The Testator died in November 2013 leaving an estate worth just over $2 million. The Testator was unmarried, had no children and lived alone.
The Will signed by the Testator met with formal requirements and there was no issue regarding capacity. There were however suspicious circumstances surrounding the signing of the Will and consequently the Court would not be satisfied that the document propounded as the Testator’s last Will did express the true will of the Testator, unless the suspicion was dispelled by the executor.
Evidence revealed that the Will prepared by the neighbour did not conform completely with the Testator’s wishes in that the Testator had wanted to leave $20,000 to the Children’s Hospital and $5,000 to a Church. Instead the Will left the whole of the net estate to the neighbour executor’s wife with a non-binding request that she make a gift of two sums to the Church and the Hospital.
In this case the Court was satisfied that the Testator understood that subject to gifts to the Hospital and Church, all of his estate would be given to the executor neighbour’s wife, “The closeness of his relations with his neighbour makes that a perfectly rational gift, particularly in the absence of any relative with a claim on his testamentary bounty”. The fact that this Will represented a departure from past Wills did not of itself mean that the Testator could not have a change of mind “A change of mind is not itself suspicious, particularly as every passing year may have strengthened the bond of friendship” between the Testator and the beneficiary named in his Will.
Whilst the degree of suspicion will vary with the circumstances of each case “It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed” this case was not of the latter kind and the Court was prepared to find there was a rational explanation for the Testator wishing to leave his estate (subject to two small legacies) to the executor neighbour’s wife. The Court utilised its power to rectify the Will to ensure that the gifts to the Hospital and Church were given effect in accordance with the Testator’s wishes.
Much of the turmoil and expense of the above court case could have been avoided if the Testator had only consulted his Solicitor to draw up his new Will. Accumulating assets takes time and for many it can often take a lifetime. It makes sense then that you should take the time to seek professional advice to make a Will that adequately records your wishes as to the ultimate destination of your wealth. At Everingham Solomons we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.
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A September 2015 decision of the Fair Work Commission (FWC) resulted in a stop bullying order being made in favour of an employee of a real estate agency.
After a number of incidents between two employees, a confrontation took place between the employees in the tea room. One of the employees called the other a “naughty little school girl running to the teacher” and then defriended her on Facebook. The Deputy President of the FWC said that action “evinces a lack of emotional maturity and is indicative of unreasonable behaviour… [she] took the first opportunity to draw a line under the relationship… when she removed her as a friend on Facebook as she did not like [her] and would prefer not to have to deal with her”.
Some of the reporting on this case has made much of the Facebook defriending incident. In the context of the case, however, it was one of the last in a long line of incidents between two employees with a broken relationship. One employee’s response to their poor relationship was to belittle, humiliate, embarrass the other, and treat her differently from other employees. It was repeated, unreasonable behaviour by that employee, which posed a risk to the health and safety of the other employee. In fact, it resulted in her seeking treatment for depression and anxiety, and making a workers compensation claim against the employer.
The message for employers is to act promptly and reasonably when broken relationships at work start to turn toxic. Seek a mediated outcome between the employees, even engage a professional to assist, and avoid the stress, lost management time and cost of dealing with a stop bullying application before the FWC.
At Everingham Solomons, we can proactively and pre-emptively assist you develop your organisations approach to workplace bullying because Helping You is Our Business.
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An Apprehended Violence Order (AVO) is a court order designed to ensure protection from violence, intimidation, harassment and stalking.
The person against whom the order is sought, the defendant, has two options, to consent to the order or to contest the order.
If you chose to consent to an AVO you can do so without admissions. This means that you are not agreeing to or admitting any or all or the particulars of the application. Rather, you are stating that you don’t object to the order being put in place because you are happy to comply with the prohibitions and restrictions sought in the application.
If you choose to contest an AVO, the matter will be listed for hearing and both parties, the applicant and the defendant, will have to provide evidence. The magistrate will then make a determination as to whether the order is warranted and if so, what prohibitions and restrictions on the behavior of the defendant are necessary or desirable to ensure the safety and protection of the applicant.
Once an order has been made by the Court it must be complied with. To knowingly contravene a prohibition or restriction specified in an apprehended violence order is an offence punishable by a maximum fine of $5,500 and or imprisonment for a period of up to 2 years.
Although consenting may often be the most expeditious way to dispose of an AVO, it needs to be remembered that breaching an AVO is a criminal offence.
If you require advice or representation in relation to an AVO matter the experienced solicitors at Everingham Solomons can assist you because Helping You is Our Business.
Once there were 3 brothers who ran a very successful business via a company in which they all held shares and they all worked on a full-time (and a bit more) basis.
Like most brothers there were niggles between them from time to time but they got on and they certainly didn’t consider they needed to document their understandings of what should happen if one of them wanted to leave the business or if one of them died.
One of the brothers died unexpectedly leaving behind his wife and young family who depended upon the income from the company. His shares in the company passed to his wife under his will.
From the wife’s viewpoint she had no continuing right to income from the business nor any clear right to sell the shares.
From the viewpoint of the surviving brothers and the company, they lost the value of their brother’s personal input on a day-to-day basis, felt pressured by the needs of the family of the deceased but did not have any right to buy the deceased’s shares in the company.
In summary, a very unsatisfactory situation from both perspectives that could easily have been avoided with an appropriate Shareholders Agreement.
A simple Shareholders Agreement could have made provision for what should happen in the event of one of the shareholders dying and how the interest of that deceased person would be valued. That agreement should have been negotiated at a time when the issues from all parties perspectives would have been exactly the same whereas negotiations ultimately took place when interests were in conflict and when emotions were quite raw.
The end result was quite a hostile negotiation which left both the surviving brothers and the wife of the deceased dissatisfied with the result from a business perspective and ruined the once close relationships between the families.
At Everingham Solomons we help businesses and families to avoid these types of problems on a daily basis because Helping You is Our Business.
In a recent case in the Fair Work Commission, an employee who behaved drunkenly and inappropriately at a work Christmas party won an unfair dismissal case against his employer. The message for employers is that your duties are not necessarily limited to the office; so be careful this season in supplying unlimited alcohol to your staff, or face the consequences.
Mr. Keenan was an employee at Leighton Boral when he attended a Christmas party for the firm in December of 2014. At the party, Keenan’s employer supplied unlimited alcohol for employees without supervision. As a result of becoming highly intoxicated at the function, Keenan acted inappropriately, swearing at his boss and repeatedly harassing a female colleague for her phone number. Keenan and several other colleagues then proceeded upstairs to a public bar, where he allegedly sexually harassed a female colleague and bullied other colleagues.
As a result of Keenan’s behaviour, he was dismissed following the function. Keenan then proceeded to make an application for unfair dismissal to the Fair Work Commission.
Keenan’s worst behaviour occurred after the Christmas party in the upstairs public bar. However as this was not in an employment setting, for Keenan’s behavior in the public bar to constitute grounds for dismissal it needed to be proved that it impacted the capacity of fellow employees at work. In this case it did not, as his colleagues were unconcerned by his behaviour.
The work party, on the other hand, was sufficiently “in the course of employment”, as Keenan attended due to an invitation by his employer. However the Vice-President of the Commission found that Keenan’s behaviour did not constitute grounds for a dismissal. This was due to several reasons, the most notable being that Keenan’s employer allowed unlimited alcohol consumption. The Vice-President found that it was “entirely predictable that some individuals will consume an excessive amount and behave inappropriately”. It was contradictory for Leighton Boral to supply endless alcohol and then dismiss Keenan as a result of his behaviour.
With the approaching office silly season, employers should be aware that a broader duty is owed to employees that does not end when they leave the office at 5pm. Where there is alcohol supplied at work functions, employers should provide supervision to limit intoxication, and ensure that employees get home safely.
At Everingham Solomons we have the experience and expertise to assist and advise on you or your company’s work place legal needs, because Helping You is Our Business.
The Building and Construction Industry Security of Payment Act 1999 (NSW) (“Act”) can be a powerful tool for subcontractors to use when seeking payment for work performed and materials supplied from non-paying or late paying builders.
