Introducing Morgan Papas

I am the newest addition to the Everingham Solomons Personal Injury Team.

I have been working at Everingham Solomons since September 2022 as a Law Graduate in the Personal Injury team, and I was recently admitted to the Supreme Court of New South Wales as a Solicitor in April 2023.

I am originally from Broken Hill and completed my schooling there and moved to Armidale in 2018 after finishing my High School Certificate. I commenced studying a double bachelor’s degree in Law and Criminology and lived on campus at Duval College during my four years of study.

After finishing my degree in 2022, I returned home to Broken Hill where I completed my Graduate Diploma of Legal Practice through the College of Law. During this time, I undertook work experience at Legal Aid, where I assisted on several criminal and family law matters. This experience allowed me to gain skills in advocacy, research, and ethics.

I moved to Tamworth in August 2022 where I commenced working at Everingham Solomons with Mark Grady. I was exposed to the world of personal injury and became fascinated with the processes and legislation involved in this area. Here in the personal injury team, we focus on all types of matters involving workers compensation, common law claims, public liability claims, and motor vehicle accidents.

When I’m not at work, I enjoy playing Australian Rules Football and Oztag, or catching up with friends.

As a Solicitor, I enjoy engaging with clients and helping them through complicated processes whilst protecting and maintaining their best interests to achieve a just and fair outcome. I look forward to doing this for the local community as part of the Everingham Solomons team, because Helping You is Our Business.

Click here for more information on Morgan Papas.

Don’t leave your Will to chance

The deceased died tragically by her own hand in 2021. By law, certain formalities are required to make a valid Will. Firstly, a Will must be in writing. Secondly, a Will must be signed. Thirdly, the person making the Will needs their signature to be witnessed by two other people who also need to sign the Will. If a person dies without a valid Will the intestacy rules under the Succession Act 2006 (NSW) determine how the deceased person’s assets will be distributed. However, a Court may dispense with the formal requirements to make a Will and uphold a document as a Will if the Court is satisfied that the deceased intended the document to form his/her Will (the dispensing power).  The deceased’s sister sought to invoke the Court’s dispensing power to admit to probate what was described as “the online Will”. The estate was less than $1 million.  When she died, the deceased was survived by her parents and two siblings.

“[T]he online Will” consisted of an “online Will questionnaire” completed by the deceased through an online Will writing platform. Due to the questionnaire being completed by the deceased on a public holiday prior to her death, it was not reviewed until the next business day. As a consequence no Will was generated or signed by the deceased before she died. On the same day as completing the questionnaire, the deceased sent an email to her lawyer who had been acting for her in relation to a possible compensation claim which said: “Just letting you know I have drawn up and completed a Will” and she included what she believed to be a link to the online Will, as well as the name and contact details of her nominated executrix being her sister. Additionally the deceased left a text on her mobile phone to her sister, which remained unsent. In part the text stated, “I have emailed my lawyer…with the link to my Will I made this morning. I didn’t have time to wait for it to be signed, but I am hoping it will stick”.

In reviewing the dispensing power, the Court acknowledged the “clear intention of [the law] is to allow the Court to give effect to a will-maker’s intention, despite the fact that a will has not been validly executed…Each case must be decided on its own merits, taking into account all of the circumstances”.  In concluding “the online Will” should be considered a Will because the Court was satisfied on the evidence that the deceased intended it to form her Will, it is important to note that whilst the Court recognised that “digital communication has become an essential part of the social and economic fabric of society” it also noted “this application has been determined on its own facts. But for the statements, in writing, made by the deceased, about the online Will, the Plaintiff’s claim may not have succeeded”.

Whilst ultimately the application was successful, it was not without associated difficulty, delay and uncertainty for the family of the deceased coupled with considerable legal costs much of which could have been avoided if the deceased had consulted her lawyer to make a Will. At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.

Click here for more information on Lesley McDonnell

What if I accept less than 10% deposit when selling my property?

When selling a property, usually a sum of 10% of the purchase price is paid as a deposit by the Purchaser. Recently, however, the acceptance of 5% deposits are becoming more acceptable, especially as property prices have increased.

Is there a risk to you as a Vendor if a 5% deposit is excepted?

The main risk associated with accepting a deposit of less than 10% is that if the purchaser defaults, you may not be able to claim the full 10% deposit as compensation.

Often, as a common practice, a Special Condition can be included in a Contract for Sale which states that if the deposit is less than 10% and if the purchaser, by its default, fails to complete the purchase, the deposit is forfeited to the Vendor and the purchaser must also pay to the Vendor the balance of the agreed 10% deposit. Unfortunately there is much uncertainty from the Courts as to whether such a clause is enforceable. Fortunately, default by a Purchaser is a rarity in a property transaction.

But is there a benefit to the Vendor if a 5% deposit is excepted?

Yes! You may have a purchaser that has offered you the price you are looking for however, does not have the cash available for the full 10% deposit. In doing this you are removing the risk of not selling the property or receiving the asking price for the property.

If it is known that you may accept a deposit of less than 10%, this increases the number of potential purchasers that may make offers on your property. In turn, this can result in achieving a higher purchase price, particularly at auctions. The more people making offers or bidding at auction for your property, the greater chance of securing a great sale price.

If you need legal assistance, contact Everingham Solomon’s team of experienced Solicitors because Helping You is Our Business.

Click here for more information on Lisa Biddle.

Headphones while driving: Are you asking for treble?

In NSW it is not expressly illegal to wear headphones while operating a motor vehicle.

Music to your ears, right?

Not quite. There is a bit of a ‘catch all’ road rule which could see the wearing of headphones as being problematic and in some circumstances illegal. This rule being NSW Road Rule 197(1) essentially make something illegal if it is a distraction that causes a driver to not have proper control of a vehicle.

This rule generally is invoked if your driving causes an accident or if you are witnessed to be driving erratically.

So, would a Police Officer charge you for wearing headphones while driving in these circumstances? Well, that beats me!

Police have discretionary power with respect to this offence, meaning that they alone would decide if you wearing headphones was deemed to be a distraction and therefore, if it would be deemed an offence. In some circumstances, you may be able to fight any charges laid in Court, but the Police will have the discretionary power to charge you initially.

If you were charged under this road rule for not having proper control of the car, you’d be looking at three demerits and a $481 fine. The Court could impose higher penalties, should the matter be referred there.

In addition to the possible fines, you face if you are charged with this offence, insurance companies may not pay on a claim arising from an accident. This is because there are usually clauses in their PDS noting if you are negligent or knowingly dangerous in your driving, then your claim may be denied. This is ultimately a matter for the insurance companies to decide.

Generally, it is considered that the practice of wearing headphones is unsafe, as it inhibits your ability to hear emergency sirens and horns used by other drivers as well as generally dulling your awareness of your surroundings. Plus, generally speaking, in order to use headphones, you need to connect to your mobile phone. Mobile phone use while driving carries many possible offences as well.

As the law is unclear and there is a lot of discretionary powers, the best position in NSW lends to being one where you err on the side of caution and refrain from using headphones while you drive.

If you need some sound legal advice, contact Everingham Solomons, because Helping You is Our Business.

Click here for more information on Sarah Rayner.

Should you allow a purchaser early possession of your property?

Early possession in the sale of a property occurs when a vendor, being the owner of the property, allows a purchaser access to the property prior to settlement.  There can be various reasons why a purchaser may request early possession.  The purchaser may have sold their property, or they may need to vacate their residence earlier than expected.  The purchaser may also wish to gain a head start on moving by storing items in the property if the whole or a portion of the property is vacant.

In terms of the advantages of early possession, it is the purchaser who primarily benefits as early possession provides relief for housing or storage issues the purchaser may be experiencing.  There may be some advantages for the vendor.  Such as, if the property is vacant it may be beneficial to have someone residing in the property to reduce the risk of a break-in and vandalism.  Early possession can also create additional income through an early possession fee.  Whilst there are some benefits for vendors, allowing early possession comes with risks.

If the vendor grants the purchaser access to the property prior to settlement, the purchaser is obtaining the benefit of the property whilst the vendor must wait until settlement to receive the settlement monies.  This is because, at settlement the title to the property passes from the vendor to the purchaser when the purchaser pays the settlement monies to the vendor.  The risk is, if settlement does not go as planned, the vendor may experience the added stress, delay and cost of taking action to have the purchaser and their belongings removed from the property.  The vendor may also need to deal with repairing damage caused by the purchaser.

Every sale is unique and involves vendors and purchasers who have different needs and goals.  Early possession is just another consideration to the transaction.  Before you agree to granting a purchaser early possession of your property, it is strongly recommended you seek legal advice.  This is to ensure you fully understand the risks but also to ensure the terms of early possession are clearly outlined and agreed to by all parties.

For efficient and expert advice, contact Everingham Solomons where Helping You Is Our Business.

Click here for more information on Jessica Wadwell

New Exemptions from Foreign Surcharges

NSW Revenue recently announced on 21 February 2023 that citizens of New Zealand, Finland, Germany and South Africa (Exempt Countries) are no longer required to pay surcharge purchaser duty (SP Duty) and surcharge land tax in NSW.

For now, we will put aside surcharge land tax for a later advertorial and look at SP Duty.

Generally, when foreign buyers purchase residential related property in NSW they must pay an additional 8% SP Duty on top of the usual stamp duty.

In NSW, you are generally not a foreign person if you are a:

  1. 1. Citizen of Australia
  2. 2. Person who is ordinarily a resident of Australia. To meet this requirement, you need to:
  • have actually been in Australia during 200 or more days of the preceding

12 months; and

  • not be subject to any time limit to leave. So, you would need a permanent entry visa (not a work visa and the like).

As part of the recent update, Revenue NSW decided that charging SP Duty is inconsistent with international tax treaties entered into by the Federal Government with the Exempt Countries.

SP Duty for non-individuals (such as companies, trusts and partnerships) that arises because of an entity’s connection with the Exempt Countries may also be affected by international tax treaties. At a general level, a corporation is considered foreign when a foreign person holds a substantial interest (20%) in the corporation.

To put all of this into perspective:

  1. If Alex is not a citizen of Australia or a person who is ordinarily a resident, then Alex may be a foreign person.
  2. If Alex is purchasing a $1,000,000 property in East Tamworth, the estimated stamp duty is approximately $40,110.
  3. 3. As a foreign person, Alex could pay up to an additional $80,000 in SP Duty on the $1,000,000 purchase (8% of purchase price). So, the total duty Alex pays in addition to the purchase price would be $120,110.

But, in this scenario, if Alex is from an Exempt Country (i.e. New Zealand, Finland, Germany or South Africa), Alex may now save $80,000 in SP Duty

On the other hand, Alex may be entitled to a refund if this amount was previously paid on or after 1 July 2021.

If we can assist you with your property transaction, please contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Jesse Martin.


Introducing Josiah Moore

I work as a Paralegal at Everingham Solomons, within the Personal Injury team, assisting with the legal work involved with compensating injured workers and victims of motor vehicle accidents.

Originally from the shores of Newcastle, in 2015 I moved inland to Tamworth.

I am currently completing my law degree at the University of New England and am eager to assist clients however I can.

Having come from the coast, there are many differences that are noticeable, but one thing remains the same regardless of where you are in Australia, the idea of a ‘fair go’. Since commencing at Everingham Solomons in 2019, I have had the privilege, alongside a fantastic team, of helping those people who have been impacted by personal injuries achieve their own fair go in a system that can oftentimes feel overwhelming.

If you’ve suffered an injury and are in need of a helping hand along the path to compensation, we would be glad to assist you at Everingham Solomons, because Helping You is Our Business.

Click here for more information on Josiah Moore.

The cash’s out of the bag

On 7 December 2022 saw a major reform in Employment law through the implementation of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Act). This change saw many changes come into effect, including provisions regarding pay secrecy.

Previously, it was not uncommon for Employers to have a pay secrecy clause in Employment contracts prohibiting Employees from disclosing their pay details to others.

From 7 December 2022 all new Employees and Employees on an award, enterprise agreement or other Fair Work Instrument have an established workplace right to share details about their pay and benefits and to ask other Employees about their pay details. They can also ask about the terms of their employment.

This can also apply to Employees with an employment contract, but only in certain circumstances.

Employees will not be required to disclose information should they not wish to.

The changes also see Employers now being prohibited from taking adverse action against Employees for disclosing this information to others. If they do, Fair Work Ombudsman can impose penalties and the Employee can make general protections claims (general workplace claim) against their Employer.

However, it is noted that if you are a contracted Employee and have a pay secrecy clause in your contract, and your Employment contract has not been amended in any way since 7 December 2022, then the secrecy clause in your contract will still apply.

Any amendment to your current contract will automatically invoke this change and your pay secrecy clause will no longer apply.

Remember a change to your contract can be as simple as agreeing to work from home, a pay rise, change of your working hours, or a change to your role. It does not need to be a specific change relating to these provisions. They also do not have to be in writing.

In addition, from 7 June 2023, Employers can also no longer include pay secrecy clauses in Employment contracts, or they can face penalties of up to $66,600.00.

Employment law is tricky and has very strict deadlines for claims, if you need help with employment law, contact Everingham Solomon’s team of experienced Solicitors because Helping You is Our Business.

Click here for more information on Sarah Rayner.

Land Law…What is it?

Land is the main focus of property law. Each state in Australia has a different regime for the regulation, procedure and compliance.  It is a largely statute-based area of the law but can still be influenced by the common law and principles that originated from Australia’s history as a colony of the United Kingdom, where land and estate law developed through the ambit of feudalism.

Property law creates a system for evidencing, recognizing and transferring title to land, facilitating its use as an economic instrument. Other legal instruments in property law that facilitate the private and commercial dealing of land include the mortgage, lease, covenant and easement.

The Torrens title system was first introduced in South Australia by Sir Robert Richard Torrens, the Registrar-General of Deeds, through the Real Property Act, 1858. New South Wales adopted the Torrens system with the commencement of the Real Property Act, 1862 on 1 January 1863 and this marked the beginning of the end of Old System land titles and the start of the system we use today.  There are still some remnants of the Old system land titles.

In accordance with the principles of the Torrens system, each state maintains a land titles register of land that has been registered under the system which also shows the proprietor (owner) of the land.  This system was devised to reduce the amount of fraud relating to land due to falsification of title deeds. It does so with “ownership” of the land being confirmed only upon registration of the property.

The Torrens system also provides for registration of other interests in land such as mortgage, by which land is used to secure a loan.

The two pieces of legislation regulating interests in property in NSW is the Real Property Act, 1900 and the Conveyancing Act, 1919.

All paper land titles in NSW were abolished on 11 October 2021 and all land dealings must be lodged electronically with NSW Land Registry Services.

All registered land title certificates are maintained in public registers which can be accessed either online or in-person.  A title search of the Torrens Title Register held by NSW Land Registry Services is the single source of trust as to ownership of a person’s home or property.

At Everingham Solomons, we have the expertise to assist you with all legal matters regarding your land, because Helping You is Our Business.

Click here for more information on Suzanne Hindmarsh.

Sentencing Options in Criminal Matters

If you enter a guilty plea or are found guilty after hearing, your matter will proceed to sentence. The key piece of legislation that governs the sentencing of matters is the Crimes (Sentencing Procedure) Act 1999 NSW (“the Act”).

In sentencing an offender, the Court has a range of options, depending on the maximum penalty applicable to the offence and the jurisdictional sentencing limits.

The most serious sentence that can be imposed is a sentence of full-time imprisonment. However, under s 5(1) of the Act, “A court must not sentence an offender to imprisonment unless it is satisfied …. that no penalty other than imprisonment is appropriate”. For sentences of imprisonment greater than 6 months, the Court must set a non-parole period and the balance of the sentence.

A second type of custodial sentence is called an intensive corrections order (ICO). A Court may order an offender sentenced to imprisonment for not more than 2 years, serve that sentence in the community by way of intensive correction. During an ICO the offender will be monitored by Community Corrections and subject to the Court order conditions that may involve things like: community service, curfews, surveillance or electronic monitoring, non-association conditions and a ban on the consumption of alcohol/illicit drugs. Should the ICO be breached, the State Parole Authority has authority to deal with the breach of the ICO – serious breaches often result in the ICO being revoked and the offender going into prison.

The Court also has a number of non-custodial sentencing options. A Community Corrections Order (CCO) is a Court Order with a maximum term of 3 years. The standard conditions require that the offender be of good behaviour/commit no further offences and appear before Court if required. Additional conditions may include: a curfew, community service work, rehabilitation, abstaining from drugs/alcohol and/or a supervision condition.

Conditional Release Order (CRO) is a type of Court ordered good behaviour bond with a maximum term of 2 years. The standard conditions are the same as the CCO, whilst additional conditions are similar to a CCO, with the exception of a curfew and community service. A conditional release order can be imposed with or without conviction.

The Court can also impose a fine, as either a stand-alone sentence, or on top of other sentences. It is important to note however, that a defendant cannot be fined where the charge is dismissed or a CRO has been imposed.

The Court also has the option to impose a conviction with no other penalty under s 10A of the Act.

Finally, a section 10 dismissal is when the Court finds the offence proven but dismisses the charge.

Sentencing matters can be quite complex, so consider engaging the expertise of our experienced lawyers, as Helping You is Our Business.

Click here for more information on Dan Daley.