The Westpac Rescue Helicopter Service (WRHS) is proud to announce a new event partnership with Tamworth based Everingham Solomons Solicitors, as the law firm celebrates its 150th anniversary of serving the North West.
The partnership, with an investment of $20,000, will give five of the Service’s prestigious local events critical support, after two years of disrupted fundraising through the pandemic and natural disasters.
“We are excited in 2022 to be able to deliver our signature events again to the New England North West, as well as adding some new ones. This support from Everingham Solomons will play a valuable role in ensuring the Rescue Helicopter is ready to respond to those who need it in our region,” said WRHS Event Coordinator Jeff Galbraith.
Everingham Solomons Solicitors Director George Hoddle says the 150th anniversary provides the ideal opportunity to acknowledge an incredible milestone for the company whilst supporting a well-respected and trusted local charity.
“This year marks 150 years serving North West NSW since 1872. Charities and events have had a tough time in recent years so we really wanted to give back to the community as part of our anniversary celebration rather than hold a private function. The chance to support such an important charity that plays a vital role in the community made this the ideal scenario,” said Everingham Solomons Director George Hoddle.
“At Everingham Solomons, helping you is our business and this aligns perfectly with the Westpac Rescue Helicopter who help people in their greatest time of need. We look forward to supporting the Rescue Helicopter throughout the year,” Mr Hoddle announced.
The agreement will see the iconic Tamworth law firm sponsor a series of WRHS fundraising events across the New England North West region throughout 2022, including the Tamworth Rescue Ball, Golf Day, Charity Race Day, Ride for the Chopper and other regional events, with all funds raised supporting the Service’s Tamworth Base.
The wheels of justice will continue to turn with the help of one Tamworth teenager.
Despite online learning and COVID-19 disruptions, Oxley High School graduate Isabella Clapham’s outstanding year 12 results were recognised with the Sir Adrian Solomons Memorial Law Bursary from Everingham Solomons Solicitors on Friday, as she embarks on a law and commerce degree at the University of Newcastle.
Ms Clapham said she was thrilled to receive the bursary, which provides her with a paid clerkship at the firm and $1,500 to assist with her relocation and study needs.
“I know heaps of people at law school who are very jealous because they all want that work experience, and it’s a really good law firm so I’m really excited,” Ms Clapham said.
While she’s yet to decide what area of law she wants to go into, Ms Clapham is hoping the work experience gives her a taste of all her options.
Director at Everingham Solomons, George Hoddle, said the work experience would help Ms Clapham stand out from the crowd.
“The practice of law is very different from the study of law,” Mr Hoddle said.
“So knowing that they have practical exposure holds them in good stead.
Each year the bursary is awarded to a local student with the hope they’ll return to Tamworth to help service the region.
Deputy principal at Oxley High School Mark Baldwin said he wasn’t surprised by Ms Clapham’s achievements given her work ethic.
“She’s the classic example of what we try and say to students,” Mr Baldwin said.
“If you put in the hard yards, it’s a long process, but in the end you’ll get the reward.”
Article published in The Northern Daily Leader, 26 February 2022
It is not uncommon in businesses that an employee can also simultaneously be a Shareholder and Director of a company. The matter of Agha v Devine Real Estate Concord & ORS [2021] NSW CA 29 dealt with this situation.
This case considered restraints in circumstances where there was a Shareholders Agreement and an Employee Agreement for Mr Agha. Both of the documents contained clauses in relation to Restraint of Trade as well as clauses protecting confidentiality. An issue that needed to be considered was which restraint applied out of the two documents as they provided different periods and overlapping areas of restraint.
The post-employment restraint period under the Employment Contract was for a maximum of twelve months whereby the restraint in the Shareholders Agreements was for a period of three years.
The brief facts of this case were as follows:
Mr Agha gave notice to Devine Real Estate that he was going to resign from his employment, sell his shares and resign as a Director.
Devine Real Estate discovered shortly thereafter that Mr Agha had sent confidential information to his personal email address and entered into an Employment Agreement with a competitor, Bell Property.
Devine Real Estate then brought proceedings in the Supreme Court which were later put on appeal by Mr Agha.
Both the primary judgment and the Court of Appeal agreed that the more extensive restraint in the Shareholders Agreement was valid and enforceable. Given Mr Agha’s seniority and position as a past shareholder it was reasonable.
Further, Mr Agha was in breach of soliciting existing clients within a restraint area whilst working for a direct competitor.
The case of Agha v Devine Real Estate Concord highlights the need for properly drafted Employment Agreements but also Shareholders Agreements. It is important that employees, Shareholders and Directors are aware of the post-employment obligations as an employee as well as any restraints contained in relevant Shareholders Agreements and the duties owed by a Director to a company.
Should you need assistance in relation to these issues, Everingham Solomons has the expertise to assist, because Helping You is Our Business.
In New South Wales the Succession Act provides that an eligible person must commence Court proceedings for provision out of the Estate of a deceased person within 12 months from the date of death.
If proceedings are not commenced within this time then the Claimant will be met by a defence that the claim is statute barred and should be dismissed.
Under Section 58(s) of the Act the Court has discretion to extend the time for making an Order. Such extension is granted only upon sufficient cause being shown, often where there is no prejudice to the Estate, and where the delay is explained by the person challenging the Will.
A case that considered extensions of time in the New South Wales jurisdiction is the case of O-Brien v Luscombe. In this case the Supreme Court was asked to consider a claim for provision when the claim was brought 8 years after the time to bring a claim had expired.
In this case the Court considered four general questions to be considered when determining whether to extend the time limit.
1. Is it a strong claim with sufficient merit?
2. Is there any prejudice to any beneficiaries that have already received an interest from a distribution from the Estate (including any real expectations in relation to property)?
3. Is there a reasonable explanation for the delay in bringing the claim?
4. Is there any unconscionable conduct by any other person?
Any attempt to extend the limitation period will be considered on its individual facts. If an out of time Claimant is able to enliven the jurisdiction by extending the time this does not necessarily mean that a claim will succeed. A Court if it is to allow an eligible person to make a claim out of time would then need to satisfy itself of two questions:
1. Has the Applicant, been left with adequate provision for his or her proper maintenance, education and advancement in life? And if not,
2. What provision ought to be made of the Estate of the deceased in favour of the Applicant?
If you require specialised advice in respect of a potential claim involving a Will, Everingham Solomons, has the expertise to assist you with respect of such claims, because Helping You is Our Business.
As a child of the deceased, a daughter or son of the deceased is deemed to be a person eligible to bring a claim under the Succession Act which allows for eligible people to make an application to vary the Will. In NSW a claim must be made within 12 months of the date of death.
There is an emerging predisposition on the part of Judges of the Supreme Court that adult children bringing a claim for further additional benefits from the Estate, which their claims may be dismissed entirely or otherwise the provision made for them will be made in a paltry amount.
This is particularly true when a Court looks at the conduct of the adult children towards the deceased when assessing what weight to give to the deceased’s intention to deliberately leave adult children out of their will.
The starting point of the Act is that the freedom of the person making the Will is the foundation principle and that consideration and proper respect must therefore be afforded to a capable testator’s judgement. A Court cannot simply “ride roughshod over the testator’s intention.”
There is no rule or principle that the deceased has an obligation to make provision for an adult child. Neither is a testator required to look after a child for the rest of the child’s life into retirement.
In circumstances where there is evidence that the child has been callous, hostile or indifferent towards the deceased the Court will not look favourably on the clear intentions of the deceased in favour of adult children.
In cases of small Estates, where there is a surviving widow, it is sometimes deemed appropriate that no provision be left for the adult children at all.
An adult child cannot presume to have an automatic right to a share of the estate of a parent. Nor does an adult child have an automatic right to parity as between his and her siblings, as was found in the case of Revell v Revell.
At Everingham Solomons, we have the expertise to assist you with respect to such claims, because Helping You is Our Business.
In continuing support of a great cause, from 22 to 26 March 2021, Everingham Solomons Solicitors are preparing professionally drafted Will packages* at the heavily discounted rate of $125 per person (or $225 per couple), with 100% of the proceeds being donated to the Westpac Rescue Helicopter Service.
Employment Contracts can contain Restraint of Trade clauses which affect the post-employment obligations of employees to their former employer.
Employees who are contemplating new employment in a similar area either for a competitor or related industry should first review the status of their post-employment obligations.
Often new employers require that an incoming employee warrant that they are not bound by any restraints.
When reviewing whether or not a restraint is valid the starting point is Section 4(1) of the Restraint of Trade Act 1976 which provides:
“A restraint of trade is valid to the extent to which it is not against public policy, whether it is several terms or not”.
A basic interpretation of this section is that a person has the right to pursue their chosen profession in the area in which they live.
This is reflected in the Court’s interpretation of restraint as articulated in the judgment of Vanderall Products Ltd v McLeod [1956] RPC185:
“An employer is not entitled to be protected against mere competition, a legitimate interest in the employer which may be subject of protection by covenant are in the nature of proprietary interest”.
An employer is entitled to protect their property. Such property includes client lists, intellectual property and trade secrets.
A restraint however can still be valid in circumstances where the parties have agreed to the restraint in writing and it is reasonable given the seniority and public perception or “face of the business” that the employee held whilst employed.
This position was articulated in the judgment of Cactus Imaging Pty Ltd v Glen Peter [2006] NSW SC717:
“It is plain that employer’s customer connection is an interest which can support a reasonable restraint of trade. Such a restraint is legitimate if the employee has become vis-à-vis, the “human face” of the business, namely the person who represents the business to the customer.”
In these circumstances it is merely a matter of interpretation as to restraint, time and geographic area as to what is reasonable.
Everingham Solomons has the specialist knowledge to assist in the interpretation of reasonable enforceable restraints for either a potential exiting employee or drafting the necessary Employment Contracts for a prudent employer.
If you require assistance, please contact Everingham Solomons because Helping You is Our Business.
Recently the Fair Work Commission during its four-yearly review of Modern Awards has ruled on Domestic Violence Leave.
In response to the submissions of Unions and the demands of the general public on the issue, the Fair Work Commission has sought to protect workers, noting “family and domestic violence is a community issue and requires a community response.”
The Fair Work Commission has released the final domestic violence leave model which will be inserted into all modern awards which will see Domestic Violence Leave being made available to workers from 1 August 2018.
The key elements of the incoming domestic violence leave are as follows;
The Leave will be unpaid;
The entitlement is up to 5 days leave annually;
It will apply to all employees including full time casuals and part-time employees;
The leave will not accumulate from year to year but will be available in full at beginning of each 12 month period;
The new provision will protect employees from any adverse action an employer may take against an employee for taking time off in accordance with the Domestic Violence Leave regime.
The change to the modern awards is significant and will require employers to review and update their policies and procedures.
Everingham Solomons has the specialist skills to be able to assist in the implementation of new or the updating of existing policies in respect to Domestic Violence Leave and other workplace policies because at Everingham Solomons, Helping You is Our Business.
The heat has arrived in the North West and the countdown to Christmas is here. This is an opportunity for employers to review how their business deals with one of the biggest liabilities that sits on their books. It is of course annual leave.
The January period in the region for many industries and sectors is often the quietest month which in turn may or may not require a fully staffed workplace.
Under the National Employment Standards (NES) workers in full time employment are guaranteed a minimum four weeks annual leave per year or for some shift workers 5 weeks. If those minimum weeks of annual leave are not taken during the calendar year the residual leave not taken accumulates. If this is multiplied over a number of years a significant liability owed to employees can leave a business exposed.
A practical way to reduce this liability is to direct or require employees to take their annual leave over the Christmas/New Year shutdown. Approximately 28% of Australian workers are ‘forced’ to take annual leave each year.
Whether or not an employer can require an employee to take annual leave depends on the terms of applicable modern award (noting that there are 83 modern awards) and or the terms of their employment contract.
An employee should be given eight weeks written notice but no more than 12 months’ notice of forced leave. In circumstances where leave is required the leave must be at least one week. Employees cannot use personal leave as annual leave as these are two separate entitlements and under the NES cannot be traded off.
Another option to reduce liabilities is for employees to “cash out” their annual leave. An employer can’t pressure employees to do so and if agreed the agreement must be in writing. Any payment must be made at the same rate as if the employee was taking leave.
The potential exposure of accumulated annual leave highlights the need for correctly drafted employment contracts. At Everingham Solomons we have the expertise to advise you on the terms of modern awards and the drafting of employment contracts.
The team at Everingham Solomons wishes everyone a safe and Merry Christmas and we look forward to helping you in 2018 because, Helping You is Our Business.
As a child of the deceased, a daughter or son of the deceased is deemed to be a person eligible to bring a claim under the Succession Act which allows for eligible people to make an application to vary the Will. In NSW a claim must be made within 12 months of the date of death.
There is an emerging predisposition on the part of Judges of the Supreme Court that adult children bringing a claim for further additional benefits from the Estate, which their claims may be dismissed entirely or otherwise the provision made for them will be made in a paltry amount.
This is particularly true when a Court looks at the conduct of the adult children towards the deceased when assessing what weight to give to the deceased’s intention to deliberately leave adult children out of their will.
The starting point of the Act is that the freedom of the person making the Will is the foundation principle and that consideration and proper respect must therefore be afforded to a capable testator’s judgement. A Court cannot simply “ride roughshod over the testator’s intention.”
There is no rule or principle that the deceased has an obligation to make provision for an adult child. Neither is a testator required to look after a child for the rest of the child’s life into retirement.
In circumstances where there is evidence that the child has been callous, hostile or indifferent towards the deceased the Court will not look favourably on the clear intentions of the deceased in favour of adult children.
In cases of small Estates, where there is a surviving widow, it is sometimes deemed appropriate that no provision be left for the adult children at all.
An adult child cannot presume to have an automatic right to a share of the estate of a parent. Nor does an adult child have an automatic right to parity as between his and her siblings, as was found in the recent case of Revell v Revell.
At Everingham Solomons, we have the expertise to assist you with respect to such claims, because Helping You is Our Business.
The wheels of justice will continue to turn with the help of one Tamworth teenager.
It is not uncommon in businesses that an employee can also simultaneously be a Shareholder and Director of a company. The matter of Agha v Devine Real Estate Concord & ORS [2021] NSW CA 29 dealt with this situation.