Have you got genuine concerns about residential building work that has been done at your property? If yes, there are important obligations and timing issues that you must be aware of. If you do not comply with these, your ability to commence proceedings and obtain compensation or relief may be seriously compromised.
Obligation to mitigate – If you discover a defect in building work, you can’t sit on your hands and watch things get worse. The law requires you to take steps to reduce the damage that occurs from the defective work. If you fail to do this, you may only receive compensation for some of the damage, as the law considers that you should have taken steps to protect yourself from avoidable damage.
Obligation to notify builder – Related to the obligation to mitigate, you are also required to notify the builder in writing about the defect within 6 months after the defect becomes apparent. You must not unreasonably refuse the builder access to remedy the defect.
Time limits to commence proceedings – If you wish to commence proceedings about defective residential building work, ideally you should do so within 2 years of completion of the building work and no later than 6 years. If you commence proceedings after this time, your claim will only be considered if you can show there is a “major defect” in the building work.
Proving a “major defect” is a big hurdle. In essence, it requires there to be a defect that will cause the building work to be uninhabitable, unusable or cause its destruction. On the other hand, if you commence proceedings within two years, any reasonable claim for defective work can be considered.
If you have genuine concerns about building work, it is important that you engage a solicitor early to ensure that you comply with the above obligations. If you don’t, your ability to claim compensation or obtain a remedy may be seriously compromised. Everingham Solomons Solicitors has experience in building disputes and is happy to assist you, as Helping You is Our Business.
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People commonly operate a business through a private company. A typical structure involves the business participants as being both directors and equal shareholders of the company.
When a company is created, there are basic rules that govern its affairs, however these rules do not address commercial decisions a company must make. For so long as everyone gets along, this type of basic company arrangement works well.
However, if there is a breakdown in the relationship between the business participants, problems can emerge. For example, the business participants may be unable to reach agreement about the future of the business. This type of situation is commonly called a “deadlock”.
If a deadlock emerges, people are often surprised to hear that there are limited options to resolve a deadlock. For example, there is no mechanism by which one shareholder can require another to sell their shares to them. Further, the Courts are reluctant to involve themselves in commercial disagreements between shareholders.
However, there is a solution – it is called a “Shareholders Agreement”. A Shareholders Agreement is a contract between shareholders in a company and its purpose is to provide greater detail about the operation of a company and resolution of deadlocks. For example, a Shareholders Agreement can contain mechanisms that require shareholders to sell their shares or buy those of another shareholder.
The key takeaway is this: if you a starting a company with others, you should enter into a Shareholders Agreement. It will provide certainty and assist in resolving deadlocks, which allows you to focus on your business. If you would like further information regarding a Shareholders Agreement, Everingham Solomons would be pleased to assist as Helping You is Our Business.
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When you do a job, you rightly expect to be paid. Sadly, we often see clients that are chasing money for work they have done.
However, there are many things that can be done when you initially engage a client to reduce the risk that they will not pay you in the future. Similarly, in the event you are not paid, there are early steps that can be taken that will make pursuing the debt easier. Some things to consider when engaging a new client include the following:
Client Details: Make sure you correctly identify who your client is and ensure you have accurate details for the client. For example, are you dealing with a person or their company? Doing this will avoid a debate as to who is liable to pay you in the future and make pursuing them easier.
Security: If you have standard terms and conditions, you should include a clause whereby the client grants you security over their assets to secure payments due to you. If a client is concerned you can access their assets, this will increase the chance of them paying you to avoid this from happening.
Guarantors: Getting multiple people or entities to guarantee a debt will allow you to pursue them in the event that your client fails to pay you. In particular, if you are dealing with a company, it is wise to have another person, such as a director of the company, to personally guarantee payments due to you. This is because a company may not have any assets. Accordingly, if a company fails to pay you, when you pursue the company they may not have any assets to repay the debt to you. In comparison, a person will often have assets in their own name, such as houses, vehicles and other personal property.
At Everingham Solomons Solicitors, we can assist with ensuring your client intake process and contracting terms provide you with maximum protection. And, in the event you are still not paid, we have deep experience in debt recovery, as Helping You is Our Business.
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The death of a loved one can be an upsetting and difficult time. This can be particularly so if a person feels they have been inappropriately left out of the deceased’s Will. In our experience, grandchildren can often have very significant relationships with a deceased grandparent yet they may be left out of their Will. Fortunately, there is a way by which a grandchild can seek to receive a share of the deceased’s Estate.
The Succession Act provides a means by which an “eligible person” can apply to the Court seeking an order that they be given greater provision from a deceased’s Estate. Eligible persons include people like spouses and children of deceased persons. However, determining whether a grandchild is an “eligible person” is a bit trickier.
A grandchild can only be an “eligible person” if they were “wholly or partly dependent” on the deceased person “at any particular time”. Alternatively, a grandchild may be an “eligible person” on the basis that they were a person “with whom the deceased was living in a close personal relationship at the time of the deceased’s death”.
Determining whether a grandchild satisfies one of the above conditions requires a detailed investigation into the nature of the relationship between the grandchild and the deceased, as well as a consideration of previous cases decided by the Courts.
If you are a grandchild and you are concerned that you have been inappropriately left out of a deceased’s Will, then please arrange an appointment with Everingham Solomons Solicitors. We understand the sensitive nature of these situations. We pride ourselves on giving honest and direct advice so that you can understand your legal position in these emotional circumstances, because Helping You is Our Business.
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Before you sue someone, it is critical to consider whether you will actually be able to get them to pay you money or give you property if you win your court case. If you don’t, you could be in the unfortunate position of having won your case but not being able to enjoy the spoils of your victory.
Generally, after winning a court case the court will make orders requiring the losing party to pay the winning party a sum of money or give them certain property. However, there is nothing to guarantee that the losing party will actually obey the court’s orders immediately. Similarly, they may not have money or property to be able to satisfy the court’s orders – as they say, you can’t draw blood from a stone.
However, if a person refuses to pay you under a court order, there are a range of measures available to you that can be used to force someone to obey the court’s orders. Broadly, these measures are referred to as “enforcement actions”.
The most commonly used enforcement actions are:
1. Garnishee orders: This forces third parties to pay you, instead of the losing party, money that would ordinarily be paid to the losing party, such as their wages or salary.
2. Writs of execution: These allow the Sheriff of the Court to seize and sell property belonging to the losing party.
3. Bankruptcy proceedings: This causes the liquidation of most of the assets of the losing party. You (and other people owed money by the losing party) will then seek to be paid out of the liquidated assets of the losing party.
A judgment can be enforced for up to 12 years after it is made. If the losing party can’t perform the court’s orders immediately, you should closely monitor their financial situation so that enforcement proceedings can be swiftly commenced when they are in a financial position to satisfy the court’s orders.
At Everingham Solomons, we have a range of solicitors with expertise in litigation and enforcement proceedings. This allows us to give you realistic and practical advice about the best way to maximise your claim against another party because Helping You is Our Business.
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I have recently joined Everingham Solomons where I work in the litigation and business law team.
I moved to Tamworth in 2019 to join my wife who works at a local secondary school. I have felt warmly welcomed by the local community and I am thoroughly enjoying the lifestyle offered in Tamworth.
Prior to moving to here, I worked in Sydney at one of Australia’s largest commercial law firms where I focused on commercial litigation and business transactions. This included resolving contractual disputes, engaging with regulatory bodies, and preparing contracts/other business documents. I also spent one year working at a youth legal centre where I practised in criminal law. I believe this broad experience has prepared me to meet the diverse legal needs of the local community.
I completed my law degree at the University of New South Wales. Prior to that, I completed a Bachelor of Arts at the University of Sydney where I studied history and government.
In my spare time I like to stay active by walking my dog, playing team sports, cycling and losing golf balls.
I pursued a career in law because I enjoy helping people and advocating for their interests. For me, a good lawyer is someone who listens, understands their client’s objectives and turns that into practical outcomes. I look forward to doing this for the local community as part of the Everingham Solomons team, where Helping You is Our Business.
Click here for more information on David Southwood.
Have you got genuine concerns about residential building work that has been done at your property? If yes, there are important obligations and timing issues that you must be aware of. If you do not comply with these, your ability to commence proceedings and obtain compensation or relief may be seriously compromised.