It’s happened. The dreaded jury service summons has appeared in your mail box and you are mentally trying to figure out how many seasons of Suits you can binge watch before you have to attend. But largely you are probably thinking… Do I have to?
If you have been summoned to serve on a jury then you are legally required to attend Court on the date provided in the summons. However there are some circumstances where you can apply to be exempt or excluded from serving.
To be excluded or exempt from jury duty means that you are not allowed to serve on a jury. Generally, people who are excluded or exempt is because they work in the legal, political or criminal justice system, and because the perception that these people may attempt to examine the Law rather than make decisions based on fact, which is the role of a jury. For this same reason, people found guilty of serious offences are also excluded from service.
You can also apply to be excused from jury service. You will need a legitimate reason for being unable to serve. In some circumstances you can be excused on the basis of your job, however as jury service provides you with an allowance, it is not usually viewed as a legitimate reason. Other reasons you may be excused include: pregnancy, being a full time carer, being absent from NSW (and no you cannot book a holiday after you receive your summons!) or if you have a medical condition that will make jury service difficult.
Juries are an important part of the judicial process and are required in both criminal and civil trials. Our legal system is based around the principle that you are innocent until proven guilty. The role of a jury is to make a decision as to whether a person is guilty of a crime based on the evidence presented to them during a trial. They do not make decisions of law.
But fear not! Only about 9000 of the 200,000 people summoned for jury service each year actually end up serving on a jury. Trials are often delayed, or they don’t proceed because the person involved has decided not to take the matter to trial. In those circumstances, the jurors are usually dismissed and are not required to serve. If a trial is to proceed, then you are taken into the courtroom and if you know any of the people involved with the trial then you will be dismissed. After that, each Solicitor/ Barrister has the opportunity to dismiss three jurors each without providing any reason. So just because you are summoned, does not mean you will have to serve on a jury.
That does not mean that you do not have to attend. If you fail to show for jury service you will receive a letter asking you to explain your absence. If you fail to respond to this letter or if you do not have acceptable excuse for not showing then you can be fined an amount up to $2,200.00. That’s a fair price to pay for a few days of serving your community!
Everingham Solomons have experienced Solicitors who can assist with your Legal matters, because Helping You is Our Business.
Confused by the requirements for how to restrain children in the car? It can be quite daunting and sometimes hard to get accurate information regarding child restraints and the legal requirements for car seats.
So let us break it down for you.
Under the NSW Road Rules 2014 you must restrain a child as follows:
AgeType of restraint
0-6 months Approved rear facing restraint
6 months to 4 years Rear or forward-facing approved child restraint with an inbuilt harness
4 years to 7 years Forward-facing approved child restraint with an inbuilt harness or an approved booster seat
7 years plus (145cm or shorter) It is strongly recommended to use an approved booster seat
7 years plus (145cm or taller) Adult lap-sash seatbelt
Additional requirements for the above approved restraints are that they must be properly adjusted and fastened. This means you can be fined for not having your car seat properly fitted.
The penalty for having an incorrectly or unrestrained passenger in your vehicle is 3 Demerit points and a fine of $344.00.
It is important to note that while the above are in place and age specific, if your child is too big or too small for the restraint for their age group, it may be necessary for them to use the restraint suitable to their size, not age.
It is also an offence to have a child between the age of 4 and 7 to travel in the front seat of a vehicle, unless the back seats are taken by children that are younger than them.
At Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
It is widely known that Australia is in the midst of a terrifying Bushfire season which have had a devastating effect on our residents, wildlife and fire services and others, physically, mentally and financially. The old Australian adage about how when times are tough, mateship prevails has proven to be true and in typical fashion the people of Australia have rallied. We have seen unprecedented levels of donations well into the hundreds of millions of dollars, to assist the victims, fire services, charities and wildlife agencies.
While many of these organisations are legitimately accepting donations to assist those in need, we have also seen an increase of scammers defrauding people by claiming to be assisting those affected by the bushfire disaster.
If you have been a victim of a scam, it is unlikely that you will be able to get your money back. This is because it is usually very difficult for authorities to find the people guilty of these offences and charge them. However if you think you have been scammed, you should make a report to the police as soon as possible. They have jurisdiction to follow up these reports providing that the scammers are in Australia. If the scam originated outside of Australia, then there is very little the Police can do for you. You should also report it to Scamwatch which is a government run website that warns citizens of the latest scams.
As mentioned above it is unlikely you will be able to recover your money from a scammer. You may be able to recover it if your bank can stop the money transfer, so contact them immediately. They may also be able to stop the scammers from taking any more of your money, by blocking transactions.
Some tips to ensure you are donating to a legitimate charity or organisation:
1. Do not donate to a charity you cannot verify. You can search for registered charities and not-for-profits online at https://www.acnc.gov.au/charity.
2. Avoid donating on charity platforms that don’t verify the legitimacy of the fundraiser.
3. Avoid giving your credit card details to anyone who cannot be verified.
4. Donate to established known charities with verifiable fundraising goals.
It is important to report scams, even if you cannot get your money back to prevent other people from falling victim to the same scam.
Everingham Solomons have experienced Solicitors who can assist you with your legal problems because Helping You is Our Business.
With the devastating bush fires Australia has faced in recent times, it is a timely reminder to check and ensure that your smoke alarms are installed in accordance with the legislation and more importantly that they are in good working order. The Law in relation to smoke alarms in New South Wales is pretty clear. There is a requirement for all buildings in which people sleep to have working smoke alarms installed. Firstly, how do you make sure they are working? NSW Fire and Rescue recommend testing smoke alarms once a month (press and hold the test button) and changing the batteries every 12 months. Now, are they compliant? The Environmental Planning and Assessment Amendment (Smoke Alarms) Regulation 2006 sets out the what types of smoke alarms are acceptable and the requirements for installation in different types of buildings. The Legislation stipulates that working smoke alarms must be installed in every level of your home. You are also required to ensure smoke alarms are installed and working in any rental properties you might have. The requirements for smoke alarms does not only apply to residential property, strata properties, caravans and motorhomes are also required to have working smoke alarms. It is an offence not to comply with the Legislation, and fines can be pretty hefty! But the offences don’t stop there. It is also an offence to remove or interfere with a smoke alarm. Fines of up to $550.00 can apply to offences regarding smoke alarms. Everingham Solomons have experienced Solicitors who can assist you no matter your legal question because Helping You is Our Business.
Wrong! This is one of the biggest misconceptions people have when talking about Superannuation. Superannuation is not an asset of your estate, and as such is not distributed in accordance with your Will. Superannuation is distributed by, and at the discretion of, the Trustee of your Superfund.
Most people have provided their commercial superfund with a non-binding beneficiary nomination, however while it gives the Trustee an idea of who you would like to give the benefit of your superannuation, they are in no way bound by this nomination.
You can however override the discretion afforded to the Trustee of your Superfund by completing a Binding Death Benefit Nomination (BDBN) It is important to ensure that the BDBN is valid. This included having the BDBN signed by two witnesses, be made out in writing to the Trustee and contain a declaration.
In addition to this, your nomination of a beneficiary must be someone who is considered a dependent, ie spouse or child. In the absence of a dependent person or at your election, you can nominate your Legal Personal Representative to be the recipient of your death benefit. In these circumstances, the superannuation will essentially become part of your estate and distributed in line with the wishes set out in your Will. It is important to note that some BDBN’s expire after a period of three years. So it is recommended that you review them regularly
.
In the absence of a BDBN, the Trustee is required to search for any potential dependent persons, then assess the capacity of the dependent, take into consideration any non-binding nominations and then decide on the distribution to take place. This process can be quite drawn out and the wishes of the deceased are not always upheld.
What if you have a self-managed super fund (SMSF)?
You can still bind the Trustee by completing a BDBN. Unlike other Superfunds a BDBN does not necessarily expire after a period of three (3) years. This however is governed by the rules set out in your Superannuation Fund trust deed. If necessary these rules can be amended so that a BDBN does not expire.
It is important to thoroughly consider your estate plan while you still have capacity to do so. Everingham Solomons have experienced Solicitors who can assist you to plan what happens to your estate or review what you have in place because Helping You is Our Business.
As of the 26th of September 2019, NSW has had a change to one of its road rules. From this date Motorists will be required to slow down when passing stationary Emergency or breakdown / tow vehicles which are displaying flashing lights.
A trial version of this rule change has been in effect for the past 12 months, however amendments to this have been made due to public feedback.
So what does this actually mean for Motorists?
Motorist will now be required to slow down when passing stationary vehicles which are displaying red and blue or yellow flashing lights. These vehicles include Ambulances, Police vehicles, Fire and Rescue vehicles, State Emergency Service vehicles, Volunteer Rescue Organisation’s vehicles, Traffic Commander vehicles, Transport Emergency vehicles, Tow Trucks and Breakdown Assistance vehicles.
Motorists who are travelling in an area where the speed limit is less than 90km/ hour, you will be required to slow down to 40km/hour when passing a stationary Emergency or breakdown / tow vehicles displaying flashing lights.
Motorists who are travelling in an area where the speed limit is more than 90km/hour, will no longer be required to slow down to 40km/hour, however will be required to slow down to a reasonable speed suitable for the conditions and circumstances. This speed is at the judgement of the Motorist, however it is expected that you make a clear, notable and safe attempt to reduce your speed. You will also be required to give plenty of space when passing these vehicles, including switching lanes if circumstances allow you to.
Much like all of the NSW road rules, penalties apply when you do not comply with them. In this circumstance, the penalty for breaching this road rule is a $457.00 fine and a loss of 3 demerit points.
If you believe you have been wrongly fined under this new road rule, you can apply to have the fine reviewed or appeal the penalty notice in Court, if you have grounds to do so. Before taking any matter to Court we strongly recommend that you seek legal advice from one of our experienced Solicitors as it can become quite costly if you are unsuccessful in your appeal. Everingham Solomons have experienced Solicitors that can assist you because Helping You is Our Business.
When selling your property, it is usual for a purchaser to pay 10% of the purchase price as a deposit for the property. This money is usually held by the Real Estate Agent and under the standard conditions of the Contract can be recovered by Vendor if the Purchaser defaults on the Contract.
However, it is becoming increasingly more popular for Purchasers to ask if you will accept a 5% deposit or sometimes even less.
So what happens if you accept a lesser deposit?
Most of the time, the transaction is completed as normal and the money that would have been held as a deposit is simply paid to the Vendor at settlement. But if the Purchaser defaults on the Contract, can a Vendor claim the balance of the 10% deposit?
The Courts have discussed this exact situation during a number of cases and generally the answer is no.
The Case Law suggests that the Courts will only allow a Vendor to claim the full 10% deposit in circumstances where the Vendor can prove that the 10% is a genuine pre-estimate of the loss suffered by the Vendor.
Typically, if a Vendor accepts a deposit smaller than 10% of the purchase price, Solicitors will draft a special condition that specifically notes that the balance of the 10% deposit becomes payable upon completion or upon the default of the Purchaser. In theory this sounds good, but despite the intention of this clause, it is often not enough to allow the Vendor to recover the balance of the 10%. The Court’s usual view of these special conditions, is that any condition that relies on the default of a Purchaser to make something come into effect, is a penalty and as such will not be recoverable.
If you are considering accepting a deposit smaller than 10% of the purchase price, you should think carefully as there are no guarantees that you will be able to recover the balance of the 10%, despite the intentions of the Contract.
If you are concerned that you will lose the Purchaser if you do not agree to a lesser deposit, there are other options for payment of a deposit including a deposit bond. Deposit bonds are usually for the full 10% Deposit and upon a default can be recovered by the Vendor for it’s full value.
Selling your property can be stressful and it’s important to know your rights. Everingham Solomons has a dedicated property team who can help take some of the stress away because, Helping You is Our Business.
It’s happened. The dreaded jury service summons has appeared in your mail box and you are mentally trying to figure out how many seasons of Suits you can binge watch before you have to attend. But largely you are probably thinking… Do I have to?